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Focus on Regulation

Government statistics on Human Rights judgments published

The Ministry of Justice (“MoJ“) yesterday published its annual report, Responding to human rights judgments (the “Report“).  The Report sets out the Government’s position on the implementation of human rights judgments of the European Court of Human Rights (“ECtHR“) and the domestic courts.

The Report’s publication is timely, coming against the backdrop of the recent Conservative Party proposals – Protecting human rights in the UK – on the future of human rights in the UK (discussed in our previous blog), as well as the publication this week of the Court of Justice of the European Union’s opinion on EU accession to the European Convention on Human Rights (“ECHR“). Continue Reading

English votes for English laws: the Government’s proposals on English devolution

In the fallout of the Scottish independence referendum in September 2014, which resulted in the UK political parties promising further devolution for Scotland, the UK Government has begun to consider in detail the issue of English devolution, or “English votes for English laws“, traditionally known as the “West Lothian Question“.  The Prime Minister, following the outcome of the referendum on 19 September, said “the question of English votes for English laws – the so-called West Lothian Question – requires a decisive answer“.

The West Lothian Question is essentially this: how can it be right that a Scottish MP can vote on matters applying only to England, while that same MP, or any other MP in the UK Parliament, cannot vote on matters applying only to Scotland where they have been devolved to the Scottish Parliament?

This issue has been debated ever since the first devolution of power to Scotland in the 1970s, but interest has recently been reignited since the Scottish independence referendum.  The debate has now widened to a consideration of all manners of decentralisation of power from central government in Westminster to local communities, with some calling for a “constitutional convention” to be held to consider these issues.

On 16 December 2014, the Government, published a Command paper (the “Command Paper“) setting out proposals for further devolution and decentralisation in England.  The substance of the paper is set out in its last chapter, where the respective proposals of the Conservative Party and the Liberal Democrats can be found.  These proposals are considered below.

The West Lothian Question

In its proposal, the Conservative Party states that it agrees with the principle that decisions that have a “separate and distinct effect for England (or for England and Wales)” should “normally be taken only with the consent of a majority of MPs for constituencies in England (or England and Wales)“.  It proposes three options for achieving this principle, on which it will consult and plans to make an announcement in early 2015:

  • Reformed consideration of Bills at all stages: this would involve a Bill being certified by the Speaker of the House of Commons as applying to a particular part of the UK, and participation in all stages of the legislative process in relation to that Bill would be restricted to only those MPs from the relevant part of the UK.
  • Reformed amending Stages of Bills: under this option, the Committee and Report stages of the legislative process of a Bill relating only to a particular part of the UK would be restricted to MPs from the relevant part of the UK.  The Third Reading of a Bill would be voted on by the whole House of Commons.
  • Reformed Committee Stage and Legislative Consent Motions: under this option, the Committee stage would be restricted to MPs from the relevant part of the UK, the Report stage would be taken by all MPs and then an “English Grand Chamber” would vote between the Report Stage and the Third Reading on whether to grant their consent or veto the Bill, or the relevant parts of it.

The Liberal Democrats broadly agree with the principle behind the Conservative party’s proposal, but disagree about the way to achieve it.  In particular, they propose “a new parliamentary stage before third reading” in which a committee of English MPs, composed on the basis of a proportionate representation of the votes cast at the preceding General Election (as opposed to on a first past the post basis), would vote to approve Bills only affecting England (a mechanism they refer to as a Double Lock).

There are a number of areas identified by the Command Paper that remain unresolved or where there is, or is likely to be, disagreement between the UK’s main political parties.

  • The mechanism for deciding whether a Bill is “England only” or “England and Wales only” could be technically complex and politically sensitive.
  • The basis on which MPs are entitled to vote on England or England and Wales only matters will have considerable implications for the relative representation of the political parties and therefore will be an area of contention.  The disagreement concerns whether England only matters should be voted on by:

a) all MPs for constituencies in England on a first past the post basis – this would tend to favour the Conservative Party, who are traditionally proportionately better represented than the other main parties in England under the first past the post system; or

b) a proportionate number of English MPs from the different political parties – this option is favoured by Labour and the Liberal Democrats, as it would allow better representation of their parties on England only matter than the first past the post system.

  • Should the mechanism by which England only matters are voted on have binding effect or be merely advisory?  The former would allow English MPs an effective veto over Bills, or parts of Bills, affecting only England.
  • There may be implications for the future practice of Government.  Rules affecting the entitlement of certain MPs to vote could affect the parliamentary majority of the party (or parties) in Government.  This may mean that a Government will only have a parliamentary majority on certain issues.  The Command Paper states that this could lead to Government approaching legislating in a different way, or exploring “the scope for greater non-legislative activity“.
  • The Command Paper states that consideration would need to be given to whether MPs with constituencies near the borders of the UK’s constituent nations, which may rely on services over the border, should be entitled to vote on matters in bordering nations.

English decentralisation

The parties’ proposals set out in the Command Paper in relation to English decentralisation are less detailed than in relation to the West Lothian Question.

The Conservative Party aims to “extend community rights… strengthening social and civic responsibility and building social capital“, “extend and strengthen transparency and accountability“, introduce metropolitan mayors where locally supported.  It also believes that there should be “greater use of direct democracy, such as allowing local people to hold local referendums on local issues”.

The Liberal Democrats propose a “radical approach” to English decentralisation; “Devolution on Demand“.  This proposal would provide for “areas” (a term that is purposefully wide so as to include cities, counties and regions) to be able to demand certain powers “from a menu of options” to be devolved from central government if they satisfy certain criteria.  Such criteria would include meeting targets in relation to population size, administrative competence, local democratic mandate and transparent and accountable governance structures.

As identified by the Command Paper, there are a number of outstanding issues to be considered further.  These include, in particular, whether local variation in the way services (sometimes referred to as the “postcode lottery“) are run should be a feature of future decentralisation and the implications of further devolution on the ability of central government to legislate and manage the economy.

Constitutional Convention

All three of the main political parties have indicated that they are in favour of holding a “constitutional convention” to consider the merits of a wide range of political reforms, such as electoral reform on voting age and the case for a written constitution.  Such a convention would allow stakeholders outside of party politics and from across the UK to participate in the debate about a future constitutional settlement for the UK.

Unfortunately, however, the terms of reference of such a convention are likely to be subject to as much debate as the reforms themselves.  Notably, the Conservative Party has stated in the Command Paper that any such convention should not delay the implementation of devolution in Scotland and equivalent changes in the rest of the UK.

President Obama Announces Significant Easing of Sanctions and Export Controls Applicable to Cuba

Through a broad exercise of presidential authority, President Obama announced today sweeping changes to current U.S. policies regarding Cuba, including significant revisions to current economic sanctions and export controls currently restricting trade, travel, and financial transactions with Cuba. The President also announced the initiation of steps toward restoring diplomatic relations with Cuba and formally lifting the trade embargo, which has been codified under federal statutes.

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Immigration Newletter – Department of Homeland Security

Due to the Ebola outbreak in West Africa, qualified nationals or habitual residents of Liberia, Guinea, and Sierra Leone living in the United States may apply to remain in the United States for at least 18 months under the Department of Homeland Security (DHS) Temporary Protected Status (TPS) program. The designations of Liberia, Guinea, and Sierra Leone are effective as of 21 November 2014, and the initial registration period for TPS runs from 21 November through 20 May 2015. Once granted TPS, an individual is not removable from the United States, can obtain an employment authorization document (EAD), may be granted travel authorization, and cannot be detained by DHS on the basis of his or her immigration status in the United States.

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How Will the EPA’s New Ozone Air Quality Standard Affect the Permitting of New Facilities?

The Environmental Protection Agency published a proposal on 25 November 2014 to revise the Clean Air Act’s National Ambient Air Quality Standards for ozone.

Read More: How Will the EPA’s New Ozone Air Quality Standard Affect the Permitting of New Facilities?

Commerce Department Issues Guidance on Exports in the Cloud

The Commerce Department’s Bureau of Industry and Security (BIS) confirmed that simply accessing from abroad software subject to the Export Administration Regulations (EAR) that is stored on a server in the United States does not constitute an export of the software, provided the user does not download a software application from the cloud. In BIS’s third advisory opinion on the export control implications of cloud computing, the agency explained that if the user abroad is only accessing a software application in the cloud – for example, through a Software as a Service (SaaS) offering – the user is “send[ing] its data to the cloud for processing, and caus[ing] its processed data to be transmitted back to it,” but no export of software has occurred. The advisory opinion is consistent with long-standing BIS guidance on accessing software on a U.S. server from outside the United States and draws upon BIS’s first cloud computing advisory opinion, published in January 2009.

The recent advisory opinion also points out that accessing software in the cloud still might involve an export of technology, a cautionary note worth considering. Although in some cases technology transferred through use of a commercial SaaS offering might be subject to minimal export restrictions or might not even be subject to the EAR, it also is possible that the SaaS software, depending on its sophistication, could generate and then lead to the export of highly controlled EAR technology. As always, cloud users should understand the export restrictions applicable to their technology flowing in and out of the cloud.

EMA ADOPTS NEW GUIDELINE ON MODIFIED RELEASE DOSAGE FORMS

On 27 November 2014, the European Medicines Agency (“EMA”) published its new guideline on the pharmacokinetic and clinical evaluation of modified release dosage forms (the “Guidelines“).

Modified release dosage forms are formulations where the rate and/or site of release of the active ingredients are different from that of the immediate release dosage form administered by the same route.

The purpose of the new Guidelines is to define the studies necessary to investigate the efficacy, safety, biopharmaceutic and pharmacokinetic properties of modified release formulations. The Guidelines cover dosage forms administered orally, intramuscularly and subcutaneously and transdermally. They also set out general principles for designing, conducting and evaluating related studies.

The Guidelines provide that the development of a modified release formulation should be based on a well-defined clinical need, such as improvement in patient compliance and/or safety. They also stipulate that the dossier submitted in support of an application for marketing authorisation must provide a full justification of:

  • The physical form of the modified release device and the mechanism of the release form;
  • The choice of the dosage form, defining the in vitro and in vivo performance of the product;
  • The choice of active substance contents per unit of the dosage form;
  • The clinical rationale for the new dosage form, particularly in relation to the proposed indications and posology.

The precise type and number of studies required will be determined by the intrinsic properties of the active substance, the route of administration, the type of delivery system and the intended indication.

The Guidelines will come into effect on 1 June 2015 and will replace the EMA’s Guideline on Modified Release Oral and Transdermal Dosage Forms Section II.

Judicial review reforms: anyone for ping pong?

On 1 December 2014, the House of Commons voted to reverse the proposed amendments of the House of Lords to the Government’s Criminal Justice and Courts Bill (the “Bill“).  The Bill, which seeks to reform access to judicial review in a number of important respects, has caused considerable controversy, and has been widely criticised by stakeholders in the legal profession, charitable sector and by two cross-party parliamentary committees, since its announcement by the Secretary of State for the Ministry of Justice and Lord Chancellor, Mr Chris Grayling MP, in February 2014.

On 27 October 2014, the House of Lords, at the end of over five hours of debate that included contributions from former Supreme Court Justices, Lord Chancellors and Lord Chief Justices, among others, adopted three amendments to the Bill.  Each of these amendments has now been rejected by the House of Commons.

The House of Lords debate is available here.  The House of Commons debate, here.

Each of the House of Lords’ amendments, as well as the reinstated Government proposals, is considered in turn below.

The proposals for reform and the proposed amendments

  • The first amendment in the House of Lords concerned the Government’s proposed change to the so-called “materiality test“, which seeks to impose a duty on the courts to refuse to grant relief on an application for judicial review where it is “highly likely” that the outcome would not have been “substantially different” if the conduct complained of had not occurred.  The Lords voted to replace the duty to refuse to grant relief with a discretion to do so.  The Commons have now voted to reinstate the duty.
  • The second Lords amendment concerned the proposed requirement that the courts must not grant permission for an application for judicial review unless the applicant has provided the court with prescribed information about the financing of the application.  Again, the Lords voted to give the courts a discretion to grant the applicant permission notwithstanding his/her failure to provide such information, and the Commons voted to strike down the amendment.
  • The third Lords amendment concerned orders for costs against intervening parties to judicial review proceedings.  The Bill proposed a requirement that, where such an application is made by a party to the proceedings other than the intervener, the courts must order that the intervener pay the costs of that other party that it considers to have been incurred as a result of the intervener’s involvement in the proceedings.  The Lords proposed an amendment giving the courts a discretion in relation to whether to order an intervener to pay the other party’s costs.  The Commons rejected the amendment but adopted a Government proposal to amend the provisions so that the courts must order the intervener to pay the other party’s costs if certain conditions are met.  These conditions include, for example, that the intervener has not been of significant assistance to the court, or a significant part of the intervener’s evidence was not necessary for the court to consider.

The implications of the House of Commons vote

The House of Commons refusal to back down from the Government’s original proposals will come as a disappointment to the Bill’s many detractors, among them senior members of the judiciary, the Parliamentary Human Rights Joint Committee (who subsequently supported the proposed amendments made by the House of Lords), the House of Lords Constitution Committee, the non-governmental organisation JUSTICE and 30 other charities who produced a joint briefing in advance of the House of Lords debate.

Particular concern surrounds the restriction on the courts granting permission to an application for judicial review where it is “highly likely” that the outcome would not have been substantially different, even if the decision taken was unlawful.  This has been described as “an assault on the rule of Law” which aims to “choke off challenges to unlawful action by the Executive” (Lord Marks in the House of Lords debate).  Equally, a number of non-governmental organisations have warned of the possible “chilling effect” that the proposals on orders for costs against interveners may have on the valuable interventions of charities and other non-governmental organisations in judicial review proceedings.

House of Lords’ criticism of the original proposals

During the House of Lords debate, the majority in the House of Lords made it clear that they believed that the proposed reforms would, per Lord Pannick, “damage judicial review for no good reason” and that the Government’s proposed Bill “ignores the fact that one of the central purposes of judicial review is to identify unlawful conduct by the Government or other public bodies“.

Lord Woolf, former Lord Chief Justice between 2000 and 2005, emphasised that judicial review is a remedy of last resort that is not available where there is an alternate remedy, for example by statute.  His Lordship stressed the importance of judicial review in the UK’s constitutional settlement as a “residual remedy of citizens to deal with the fear of unlawful action by the [Government]“.

Lord Irvine, former Lord Chancellor between 1997 and 2003, made a robust defence of the role played by judicial review in the House of Lords debate, stating that it is “a vital component in our separation of powers” that is “indispensable in a democracy proud to be governed by the rule of law“.  He went on to state that judicial review “ensures that public bodies act according to law. They cannot be above the law“.  His Lordship also noted that, although Government Ministers will often be frustrated if their decisions are challenged or quashed, this is an intrinsic aspect of government subject to the rule of law:

A Government who are confident that their decisions cannot be readily challenged risk becoming a Government who no longer have to respect the rule of law.

Government’s justification for the proposals

Mr Grayling, opening the debate in the House of Commons, justified the proposals in the following terms:

Judicial review was never intended to be a tool for pressure groups to seek to disrupt perfectly lawful decision making in Government and Parliament, it was never designed to be used as a political campaigning tool, and it was never intended to put the courts above the elected Government in taking decisions over the essential interests of this country. Yet, in far too many examples, that is precisely what it has become and is why reform is necessary.

Mr Grayling stated that he took his responsibility as Lord Chancellor to uphold the rule of law “very seriously“, but that he did not believe that the current use of judicial review was consistent with the rule of law.  Instead, he outlined the Government’s view that judicial review has become a tool to campaign against, delay and challenge public sector decision-making, and that it is being misused in this way with unwelcome regularity.  In the Secretary of State’s own words:

The Bill will not stop organisations being judicially reviewed where they are at fault.  It does not stop organisations being judicially reviewed for constant or serious underperformance or failure to fulfil their duties.  What it stops is judicial review on technicalities.

There appears to be competing visions of the constitutional role played by judicial review on each side of the debate.  The distance between the Government and the Bill’s detractors was well illustrated by the intervention of Frank Dobson MP in the Commons debate, when he said:

The right honourable Gentlemen talks of technicalities, but the law is full of technicalities – that is all it is.  He says that Ministers and officials are frightened of judicial review, and so they should be.  The pressure on them is to comply with laws and regulations that we have passed.

What next for the proposed reforms

The “ping pong” stage of the UK legislative process is in full swing, with the Bill now bouncing back to the House of Lords for reconsideration.  The two sides of the debate will seek to reconcile their respective positions until one side concedes.  In light of the significant interest generated by the debate so far, and the proposals’ implications for fundamental constitutional principles such as the separation of powers and the rule of law, Parliament should expect heightened scrutiny of the proposals.

Lord Phillips’ contribution to the Lords debate is perhaps an indication of what lies ahead for the Bill.  His Lordship commented that “if those in this Chamber who were opposed to these amendments at the start of this debate have not been converted by what they have heard, nothing that I can add is going to convert them“.  It seems unlikely that the Bill will return to the Commons unscathed.  The ping pong game is not yet over.

Solar energy businesses entitled to compensation arising from ministerial proposal to curtail incentives

Breyer Group Plc and others v Department of Energy and Climate Change  

In a recent decision, the High Court (Coulson J) found that a number of businesses were entitled to damages caused by a ministerial proposal to curtail government incentives in the solar energy sector. The High Court considered that the proposal, although not enacted and subsequently found to be unlawful, amounted to an unjustified interference with the claimants’ possessions, giving rise to an entitlement to damages. Although related to incentives in the solar energy sector, the findings of the High Court will be of interest to all businesses vulnerable to changes in State policies.

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