When do contracts and goodwill amount to A1P1 possession?
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU. Even so, they must act swiftly if they are to deliver on their pledge to effect an orderly withdrawal by 31 January 2020. The Prime Minister will doubtless lean heavily on his 80 strong majority to pass the complex legislation required to ‘get Brexit done’ in so short a time. It looks like this mammoth task is already getting underway as there is talk of MPs sitting on the Saturday before Christmas and the Lords sitting between Christmas and New Year. Once we are out, the urgency will continue.
The implementation of Brexit is a major undertaking, and while a thumping majority will certainly help, winning worthwhile trade deals with the EU, the USA and the wider world will depend as much on negotiating skill, the goodwill of partner nations and legal expertise as on parliamentary arithmetic. We have previously voiced concerns about the immensity of the task of delivering Brexit and the likely reliance on statutory instruments. If there is inadequate time for the proper scrutiny of bills, and if statutory instruments are to be used in place of primary legislation, it is possible that the legal arrangements put in place will be tested in the courts, creating a lot of work for lawyers and potential confusion and delay for the government while the legal effects of the Brexit arrangements are being established. Aside from Brexit, a new government with a large majority and bold goals in mind for domestic policies runs the risk of passing legislation that struggles to stand up in court. We have previously discussed the Universal Credit Regulations which are one example of a major policy reform heralded by the coalition government but which in practice was implemented in a way that the courts held to be unlawful.
From our perspective as public lawyers, another notable legal implication of the new Conservative majority is that the government may proceed with its manifesto proposals on justice, including its appetite to “update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government”. This is easily said, but achieving worthwhile reform of human rights and administrative law protections is a delicate and sensitive business.
The purpose of the European Convention on Human Rights, which is given effect to in the UK by the Human Rights Act 1998, is to provide protection in mostly uncontroversial areas of civil and political life against interferences by the state. It is difficult to do much “updating” of the law in this area without calling into question the government’s commitment to fundamental matters like fair trial rights, freedom of expression, the protection of life and the prevention of torture. Adjustments in such territory require careful thought and scrutiny to be effective as opposed to corrosive. That is not to say changes cannot be made, particularly to help make the law more transparent and accessible. For example, once Protocol 15 is ratified, the Preamble to the European Convention on Human Rights will be updated to refer explicitly, and give greater prominence, to the principle of subsidiarity and the doctrine of margin of appreciation. With appropriate care and skill, and proper parliamentary scrutiny, the government can doubtless deliver similar refinements and adjust emphases in human rights legislation without trampling on fundamental protections.
The same is true of administrative law more widely. It is difficult to overemphasise the importance of judicial review and administrative law generally in securing good and lawful governance by those in power. Whatever differences of opinion there may be about the UK constitution, it is clearly underpinned in part by the rule of law – a commitment to justice and fairness partly given practical effect by administrative law. Only totalitarian regimes think they can do without legal oversight, and politicians and officials in mature democracies welcome the role of the courts in adjudicating the boundary lines of state power. It is also important to note that judicial review and other public law litigation are mainly last resorts narrowly limited to challenging the scope of powers, the rationality of thought processes and the proper application of procedures. The courts seldom have the power to substitute their own views if they think a different decision would have been better. There are doubtless many ways in which the existing system of administrative law could be re-balanced in the sense of tightened up, clarified and rendered more comprehensible, but, given that it is a delicately balanced mechanism as it is, this will require great care if it is to do more good than harm.
Whether human rights and administrative law actually require updating and rebalancing is a matter for debate, but what is not debatable is that attempting to do so requires the utmost subtlety or else it could imperil, rather than enhance, this country’s way of life.
A version of this blog was published on LexisNexis on 13 December 2019.
In light of the announcement that an independent inquiry into the Government’s handling of the coronavirus pandemic will begin in spring 2022, Kingsley Napley hosted a webinar last week on the theme of Preparing for Public Inquiries in conjunction with Blackstone Chambers and FTI Consulting. For anyone who missed this event, a recording is available here (LINK) and we have also prepared the summary below.
Rebecca Niblock and Edward Grange examine the key changes & similarities to extradition law following Brexit. The introduction of new surrender arrangements under the EU-UK Trade and Cooperation Agreement. Changes effected under the Extradition (Provisional Arrest) Act 2020.
The Master of the Rolls, Sir Geoffrey Vos, has approved the new guideline hourly rates (GHR) proposed by the CJC and the Stewart committee which will come into effect on 1st October 2021.
These new rates are a result of the final report of the Civil Justice Council released at the end of July 2021 and the forerunning consultation that took place between 8 January and 31 March 2021.
The General Data Protection Regulation (known to everyone as the GDPR) is probably the most famous piece of legislation to come from the EU. It was and is incredibly ambitious in its scope, and shapes the way we engage with organisations both online and in the real world. When the UK formally withdrew from the EU, GDPR became retained EU law and continued to apply as before. The government have recently announced that they want to reform data protection legislation, but substantial deregulation might be an unrealistic ambition.
The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
The Supreme Court has, unusually, recently heard, and now delivered judgment on, an appeal concerning costs in statutory appeal and judicial review cases. It is unusual for costs issues to be considered significant enough to merit consideration by the Supreme Court and, not least given the outcome of the appeal – and of course it is easy to be wise after the event – it is something of a surprise that permission to appeal was granted in the first place.
To meet widespread concern about vulnerable workers and working conditions in industries including agriculture, fashion, food and waste disposal, last month (June 2021) the government set up a new watchdog to take over responsibility for tackling modern slavery, enforcing the minimum wage and protecting agency workers.
A Data Subject Access Request, or DSAR, is any request made by an individual for their own personal data. While they are quick and easy for an individual to make, many long hours and significant resources from your organisation will be needed in order to properly respond.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
Over the past few weeks there has been a steady stream of disturbing stories alleging sexual harassment and sexual abuse of children attending a variety of schools across the country, not just incidents involving children and adults but in many cases peer-on-peer abuse.
Perhaps the first practical negative consequence for the UK to emerge “Beyond Brexit” from an extradition perspective relates to Article 83 of the TCA which allows EU Member States to refuse to extradite their own nationals to the UK. Germany, Austria and Slovenia had already exercised the Nationality bar during the transition period, which ended on 31 December 2020.
The SRA introduced a new assessment and early resolution process focusing on upfront engagement and delivering, where possible, earlier outcomes on concerns reported to it. Additionally, in February 2019, the SRA introduced a revised Enforcement Strategy, setting out its approach to enforcement and the factors it will take into account when considering whether regulatory action is needed.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
The COVID-19 crisis has forced sports clubs, schools, universities and charities to rapidly change their approaches to coaching, teaching and support work. The regulations on social distancing have forced organisations to innovate; services which had previously been offered mostly or wholly in person were rapidly shifted online during “lockdown 1” and will return online at least for the duration of “lockdown 3”. If the vaccine rollout has the desired effect there will no doubt be some return to “traditional” methods, but it seems very unlikely that the changes brought about by the pandemic will be completely reversed. In this blog, Claire Parry from Kingsley Napley’s Regulatory team and Fred Allen from the Public Law team look at the challenges organisations face engaging with children online.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
The potential fallout from Brexit for extradition and cross-border criminal justice security had been forewarned even before the first vote was cast in the Referendum. The risks to the UK of losing access to SIS II and complicating a relatively simple (albeit not perfect) EAW process were highlighted by many practitioners, law enforcement agencies and politicians.
Globally, a trend is taking shape towards legislation that asks more from businesses than the reporting obligations of the UK’s Modern Slavery Act, in the area of business and human rights.
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