Interim Relief

June 11th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

In Steer  v Stormsure Ltd (2021) EWCA CIv 887 the Court of Appeal holds that the lack of provision in the Equality Act 2010 for interim relief in discrimination or victimisation claims, as compared with dismissed whistleblower claims, does not breach Article 14 of the ECHR in conjunction with any of Article 6 on procedural fairness (paras 31-33), Article 8 or Article A1P1. The status of being a litigant in a particular type of case is not a protected status: paras 36-42.

 

Religion or Belief Discrimination

June 11th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

In Forstater v CGD Europe , UKEAT/0105/20/JOJ, the claimant holds the belief that sex is immutable and not to be conflated with gender identity. The EAT holds that this a philosophical belief within Section 10 of the Equality Act 2010. It is protected by Articles 9 and 1 0 of the European Convention of Human Rights. The relevant principles are that (1) freedom of expression is one of the essential foundations of democratic society, (2) the paramount guiding principle in assessing any belief is that it is not for the Court to inquire into its validity, (3) the freedom to hold whatever belief one likes goes hand-in-hand with the State remaining neutral as between competing beliefs, and (4) a belief that has the protection of Article 9 is one that needs to satisfy only very modest threshold requirements.

 

Direct Award of Contract

June 9th, 2021 by James Goudie QC in Decision making and Contracts

Regulation 32 (2) (c) of the Public Contracts Regulations 2015 allows negotiation of a contract without prior advertisement insofar as it is “strictly necessary”. This is provided that is so by reasons of “extreme urgency”. Moreover, the extreme urgency must be brought about by events “unforeseeable” by the contracting authority and it must not be possible for the time limits for other procedures to be complied with. In R ( Good Law Project) v Minister for the Cabinet Office (2021) EWHC 1569 (TCC) O’Farrell J observed, at para 82, that use of the Regulation 32(2)(c) procedure is a departure from the “normal requirement” that public contracts ( above the relevant thresholds) “ must” be subject to an “open, transparent and competitive process.” As such, it should be reserved for “exceptional circumstances”. At para 89 she observed that the burden of proving the requisite circumstances is on the contracting authority and that the derogation must be “interpreted strictly”; at para 90 that in each case it is a question of fact, objectively ascertained, as to whether the necessary circumstances existed at the time the decision was made.; at para 91 that in considering whether there was sufficient time to carry out an expedited procurement exercise the Court may take into account evidence as to the minimum time needed in practice, for preparing tender documentation, evaluating tenders, etc; and at para 93 that even if the derogation is engaged the “scope and duration” of the procurement “must be limited” to what is strictly necessary.

At para 124 the Judge held that the extreme urgency,  for immediately needed public health protection services, caused by the Covid-19 pandemic was unforeseeable, unpredictable, and not attributable to the Defendant.

 

Revocation

June 7th, 2021 by James Goudie QC in Planning and Environmental

R (Ocado) v Islington LBC (2021) EWHC i509 concerned the revocation under Section 193(7) of TCPA 1990 of a CLEUD, a Certificate of Lawfulness of an Existing Use or Development, granted under Section 191 of the Act. The grounds for the revocation were that the application for the CLEUD had contained statements which had been false in a material particular and had withheld material information. The judicial review challenge to the revocation was dismissed. Holgate J ruled that Section 193(7) does not require the withholding of material information to have been deliberate.

 

Trade Union Rights

June 7th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

Mercer v Alternative Future Group Ltd, UKEAT/0196/20/JOJ, concerns trade Union activities, participation in industrial action, and ECHR Article 11.  EAT President Choudhury J states the principles from para 32. . Article 11 confers a qualified right to freedom of association and assembly. This includes the right to participate in trade Union activity. Restrictions on the exercise of the right are permitted where these are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others. The obligations of the State under Article 11 include both the negative one not to commit any act amounting to an infringement of the right and the positive one to secure the enjoyment of the right. The right to take industrial action and to strike is an essential element of the right and is protected by it. Any restriction, however minimal, on the right to participate in a trade Union-sanctioned protest or strike action amounts to an interference with Article 11 rights. When there is an interference with the right the question is whether such interference is justified. That involves a consideration of proportionality. When there is an infringement of the right Section 146 of TULRCA 1992 should be read as encompassing participation in industrial action.

 

Unfair Procedure

June 4th, 2021 by James Goudie QC in Planning and Environmental

In R (Save Warsash and the Western Wards) v Fareham BC (2021) EWHC 1435 (Admin Jay J quashed a planning permission. The Council had prejudiced objectors by making important documents available to them late which could have made a material difference to the outcome. There was a breach of sections 100B and 100D of LGA 1972. It was unreasonable not to defer the meeting by which the permission was granted. However, in R (Wyatt) v Fareham BC (2021) EWHC 1434 (Admin) Jay J held that there had been no violation of the obligation to assess the environmental impact of development upon wetlands important to bird life.

 

Work of Equal Value

June 4th, 2021 by James Goudie QC in Local Authority Powers

Employees have the same employer. However, they carry out their work in different establishments. Moreover, they are not carrying out the same work. Can a claim for equal pay. By female employees  nonetheless be pursued against the common employer on the basis that the work if of equal value to the work of male colleagues at a different establishment of the same employer? Yes, says the ECJ in Case C-624/19, K v Tesco, Judgment on 3 June 2021. The male employers were an appropriate comparator. Retained EU law was clear and precise and had direct effect.

 

Procurement Policy

June 3rd, 2021 by James Goudie QC in Decision making and Contracts

The Cabinet Office has issued a National Procurement Policy Statement with immediate effect. This amongst other matters requires contracting authorities to have regard to  national strategic priorities for public procurement when exercising their functions relating to procurement.  These are (1) creating new businesses, new jobs and new skills, (2) tackling climate change and reducing waste, including contributing to the target to reduce greenhouse gas emissions to net zero by 2050 and delivering environmental benefits,

and (3) improving supplier diversity, innovation and resilience. Authorities should take a “broad view” of value for money that includes the improvement of social welfare or wellbeing, balanced with delivery of the core purpose of the contract.

 

Delegation

June 2nd, 2021 by James Goudie QC in Decision making and Contracts

The Planning Committee of a local authority resolves to grant planning permission for a mixed use development. It does so subject to the developer entering into: “an appropriate legal agreement.” Council officers entered into a s 106 agreement which made affordable housing provision. They did not return to the Committee. Did they act beyond their delegated authority? No, says the Court of Appeal in R (Flynn) v Southwark LBC (2021) EWCA Civ 827, at paras 39-63 inc & 95-97.

 

Rectification

May 28th, 2021 by James Goudie QC in Decision making and Contracts

In Tyne & Wear Passenger Transport Executive v National Union of Rail etc Workers (2021):EWHC 1388 (Ch) it is held that a collective agreement can be rectified. Rectification is not confined to legally binding contracts: para 58 and following. The jurisdiction to rectify is quite general. It may be exercised in respect of a “wide range of contracts and documents inter partes.”