The Weekly Round-up: proposed reforms to judicial review, Truss’s promise to cut taxes, strip-searching of children by Metropolitan Police

9 August 2022 by Ruby Turok-Squire

A leaked report from the Ministry of Justice has suggested that Dominic Raab is considering reforms to judicial review that would effectively limit ministers’ accountability. This comes in the context of Suella Braverman’s suggestions that judicial reviews are being brought for ‘political ends’, and Lord Reed’s cautionary note regarding campaigning organisations bringing challenges to discrimination law, having lobbied unsuccessfully against such legislation whilst it was considered in Parliament (R (on the application of SC, CB and 8 children) (Appellants) v Secretary of State for Work and Pensions and others (Respondents) 2021, 162). 

Concerns continue that such reforms would not respect the separation of powers. For example, Jolyon Maugham QC recently commented that Raab ‘seems to want… a world in which government is above the law’. 

Conservative frontrunner Liz Truss is promising to cut taxes this winter to support families amidst rising energy bills, through an emergency budget that would be enacted this September. Sunak, her rival, has pledged to provide a £15bn overall package of assistance with energy bills. Criticisms have been raised of Truss’ plans, however, with suggestions that they could cost £30bn, £40bn or even £50bn per year. Both candidates’ plans have been criticised for not being accompanied by plans for lower spending that would make them sustainable. Labour’s Rachel Reeves has argued that amidst ‘fantasy economics and unfunded announcements from the Tories’, Labour alone can offer Britain the fresh start that it needs.

A survey by the British Dental Association and the BBC has shown that 91% of NHS practices in England are not accepting new adult patients. Louise Ansari, national director of Healthwatch England, has called the results of the survey ‘dire’. Stories have emerged of people pulling out their own teeth and making their own teeth out of resin to stick back on with superglue. The health secretary has noted the ‘urgency’ of preparing the NHS for winter, amidst the pressures of coronavirus, the rising cost of living and seasonal flu. Whether the Department of Health and Social Care’s recent comment regarding the ‘government priority’ of NHS dental care will translate into satisfactory results remains to be seen. 

In other news

650 children were strip-searched by the Metropolitan police between 2018 and 2020, new data has revealed. In 23% of those cases, an appropriate adult was not present. The children’s commissioner for England, Dame Rachel de Souza, has questioned the necessity of this ‘intrusive and traumatizing’ practice, given that in 53% of cases no further action was taken.  

Suella Braverman, the Attorney General, has called on government lawyers to adopt a ‘private-sector approach’ to client service. In a series of tweets, having criticised government lawyers for being ‘too cautious in their advice’, she advocated moving away from ‘the ‘computer says no’ approach’ towards ‘a solutions-based approach’ and ‘innovative legal thinking’. 

The High Court has ruled that local authorities must determine the registration status and qualifications of staff within a residential family centre before placing families there. Appropriate information must be provided before a placement begins regarding the purpose and length of any proposed assessment within the placement. The determination arose in the context of mothers and children being placed in unregulated, unregistered family placements, when regulated placements were not immediately available. 

In the courts

On 1^st August, in Dance & Anor v Barts Health NHS Trust & Anor (Re Archie Battersbee) [2022] EWCA Civ 1106, the Court of Appeal declined to grant an additional stay in the case of Archie Battersbee. On 15^th July, the Court of Appeal had determined that it was not in Archie’s best interest to continue life-sustaining treatment. The proposed purpose of this stay was to allow time for the United Nations Commission for the Rights of People of Disability to consider Archie’s parents’ argument that withdrawing his life-sustaining treatment would breach the Convention (more specifically, Articles 10 and 12). The Court emphasised that it was ‘not appropriate for this Court to apply an unincorporated international treaty into its decision making process’ [36] but rather that it should ‘decide issues with respect to Archie under domestic law’ [37]. Consequently, proceedings had primarily considered the ECHR, which is incorporated in domestic law, in a way that was compatible with UNCRPD. Focusing on Archie’s best interests, the Court found much in favour of refusing a stay, the question being one about how he should die, rather than involving any better potential outcome: ‘every day that he continues to be given life sustaining treatment is contrary to his best interests’ [42].

On 1^st August, in Worthing Borough Council v Secretary of State for Levelling Up, Housing And Communities & Anor [2022] EWHC 2044 (Admin), the High Court allowed Worthing Borough Council’s challenge to the Secretary of State’s decision to grant planning permission for up to 475 houses to be built on land designated as a ‘green gap’ and set within the South Downs National Park. This statutory review concerned the decision of an Inspector who had allowed a developer’s appeal against the Council’s refusal of outline planning permission. The Court found that the Inspector had not taken account of the conflict between the development and two policies within the Local Plan (the ‘spatial strategy’ and ‘development in the countryside’ policies) and/or had failed to give adequate reasons as to how the development had been assessed with reference to those policies. The Court also found that the Inspector had not reflected the adverse impact on views from the National Park within his conclusions, and that he had not given regard to the statutory purpose of conserving the National Park’s beauty that is found within the National Parks and Access to the Countryside Act 1949.

On 2^nd August, in SWP, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 2067 (Admin), the High Court considered whether it had been lawful for the Secretary of State to refuse an Indian citizen (known as SWP) the benefit of the Destitute Domestic Violence Concession policy. That policy gives certain dependents of some visa holders three months to apply for leave to remain in the UK if they are fleeing domestic violence, so as to prevent them staying in an abusive relationship for the sake of staying in this country. It was argued that excluding SWP was contrary to Articles 14 and 8 of the ECHR. SWP, a qualified teacher in India, was suffering ‘severe domestic abuse and violence’ but trying to ‘stay in her marriage rather than risk deportation if she were to report the abuse’ [24]. She finally fled her home to a women’s help centre, having been almost suffocated while being sexually abused [24]. She is now unable to work or have recourse to public funds [30]. The court applied Article 14 ECHR to the facts in a series of careful stages [43]. It considered that SWP’s immigration status was not analogous in the relevant respects to that of refugees, but that applying ‘a reasonably broad brush approach’ there was an analogy between Tier 2 workers such as SWP’s partner and EEA nationals with pre-settled status [70]. The UK had, however, as a measure of economic and social strategy, decided to create a ‘unique’ cohort of pre-settled EEA nationals [82]. Due to the Withdrawal Agreement – which included obligations to treat those living here as British citizens are treated [81] – there was an objective justification’ for a difference in treatment between partners of EEA nationals and partners of Tier 2 workers such as SWP; despite ‘much sympathy’ for SWP and her son, the claim was dismissed [84].

On 4^th August, in Save North St Albans Green Belt & Ors, R (On the Application Of) v Hunston Properties Ltd & Ors [2022] EWHC 2087 (Admin), a claim for judicial review of a decision of St Albans City and District Council to grant outline planning permission for a residential development on a site within the Metropolitan Green Belt was dismissed. The First Claimant in the application was Save North St Albans Green Belt, a local action group. The application for planning permission on the meadow land had received over 270 objections, including loss of landscape, environmental impacts, increased traffic and pressure on local services such as schools and doctors. The court reiterated that ‘the exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court’ [30] and that the Claimant’s duty was to establish a public law error by the decision-maker. Considering that the Council was not under a statutory duty to provide reasons for its decision [76], the court held that it had given ‘sufficient reasons for departing from previous decisions’ [77]. It had given substantial weight to the need for affordable housing and such reasons were found to be ‘intelligible, sufficient and adequate’ [81].