ECHR ARTICLE 14

April 7th, 2025 by James Goudie KC in Human Rights and Public Sector Equality Duty

In SULLIVAN v ISLE OF WIGHT COUNCIL (2025) EWCA Civ 379, Underhill LJ observed, at paragraph 115, that it is often the case in claims based on Article 14 of the Convention that issues of analogous position, status and objective justification overlap.  Lewis LJ reiterated, from paragraph 26, that:-

  • Article 14 can be considered only in conjunction with the enjoyment of one or more of the substantive rights or freedoms set out in the Convention; and
  • In general terms, the approach to the question of whether differential treatment is contrary to Article 14 involves consideration of four broad issues:
  • does the subject matter of the complaint fall within the ambit of one of the Convention rights?;
  • has the person making the claim been treated less favourably than other people who are in an analogous, or relevantly similar, situation?;
  • is that difference in treatment based on an identifiable characteristic amount to a status?; and
  • is the difference in treatment objectively justifiable? That in turn involves consideration of whether the measure giving rise to the differential treatment pursues a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The burden is on those seeking to contend that measures are objectively justified to demonstrate that this is so.

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ARTICLE 8

April 1st, 2025 by James Goudie KC in Human Rights and Public Sector Equality Duty

In N.S, v UK, Judgment 25 March 2025, the European Court of Human Rights is concerned about the making of a final adoption order and compliance with Article 8 of the European Convention of Human Rights. The issue ( paras 159/160 ) was whether the order was necessary in a democratic society. The Court set out (paras 165-171 ) the general principles relevant to child welfare measures. The Court finds no violation of Article 8.

 

EFFECTIVE CONDUCT OF PUBLIC AFFAIRS

April 1st, 2025 by James Goudie KC in Decision making and Contracts

The purpose of the qualified exemption from disclosure in Section 36 of the Freedom of Information Act 2000, prejudice to effective conduct of public affairs, is to protect, subject to the public interest balancing test, the free and frank provision of advice and the effective conduct of public affairs : GARRARD v ICO ( 2025 ) UK FTT 00343 ( GRC ) at para 128. However, the exemption was held not to apply.

 

DAMAGES FOR BREACH OF CONTRACT

April 1st, 2025 by James Goudie KC in Decision making and Contracts

The automatic suspension of contracts in procurement proceedings was lifted in MILLBROOK HEALTHCARE LTD v DEVON COUNTY COUNCIL ( 2025 ) EWHC 744 ( TCC ). Damages were an adequate remedy for the Claimant. This was held to be so even if the Council’s alleged breach was not sufficiently serious to result in damages.

 

MEETINGS AND VOTING

March 31st, 2025 by James Goudie KC in Decision making and Contracts

Consideration has been given by the Supreme Court in R (SPITALFIELDS HISTORIC BUILDING TRUST) v TOWER HAMLETS LBC (2025) UKSC 11 to a provision in the Council’s statutory Constitution, in the form of Standing Orders, with Procedure Rules, adopted by it pursuant to Section 106 of and paragraph 42 of Schedule 12 to the Local Government Act 1972, which restricted voting by Committee Members at the final Meeting to decide a planning application to those who had been present at the Meeting or Meetings at which the application had been considered. This was, from para 41, per Lord Sales, held to be lawful. It was not contrary to paragraph 39 of Schedule 12. The statutory provisions should be read according to the natural and ordinary meaning of the language used. The right of a Councillor to vote could not be regarded as absolute or fundamental in the sense proposed by the appellant. A Councillor might be disqualified from voting in a particular case by statute or by common law rules, such as a conflict of interest, or appearance of bias. Read more »

 

FLEXIBLE USE OF CAPITAL RECEIPTS

March 26th, 2025 by James Goudie KC in Capital Finance and Companies

There has been an updated Direction and Statutory Guidance from the Ministry of Housing, Communities and Local Government to extend the freedom for local authorities to use eligible capital receipts to fund the revenue costs of projects that deliver ongoing savings or improved efficiency.  The Direction, which revokes and replaces the Direction of the same name issued on 2 August 2022, extends the flexible use of capital receipts to 2030.  It also removes the restriction with respect to redundancy costs that limits the use of the flexibility to statutory redundancy costs  only.  The Direction includes the requirement to submit the planned use of the flexibility in advance of use for each financial year.

 

COURT OF PROTECTION TRANSPARENCY

March 25th, 2025 by James Goudie KC in Judicial Control, Liability and Litigation

Under the Court of Protection Rules 2017 the general rule is that Court of Protection proceedings are to be heard in private unless the Court made an Order permitting other persons to attend. It is a contempt of court to publish information relating to Court of Protection proceedings where the Court was sitting in private, unless the Court ordered otherwise.  The Court can order that a hearing be heard in public where there is good reason for doing so.  The reasons for that regime were that those with mental capacity could deal with their private affairs confidentially and in private and those who lacked mental capacity should be entitled to the same privacy.  The provision encapsulated the rights, under ECHR art 8, of persons who were vulnerable and whose involvement in Court proceedings arose from their vulnerability, not their choice.  However, there will be cases where the public interest in an individual case outweighs the privacy considerations.  The normal practice is for the Court to make a transparency order for the hearing to be in public, of its own motion, but with reporting restrictions to prevent the identification of the person lacking capacity, unless it appeared that there was good reason for not doing so.  So held in W v P (2025) EWCOP 11 (T3).

 

ENVIRONMENTAL INFORMATION

March 14th, 2025 by James Goudie KC in Planning and Environmental

AMIN v INFORMATION COMMISSIONER AND SECRETARY OF STATE for LEVELLING UP, etc (2025) UK FTT 00221 (GRC) is concerned with planning permission for a coal mine. In May 2017 West Cumbria Mining Ltd applied for planning permission for a new coal mine near Whitehaven. The Secretary of State, Michael Gove, called in the planning application. A local public inquiry was held. The Planning Inspector recommended that permission be granted. On 7 December 2022 the Secretary of State granted planning permission. On 10 July 2023 Mr Amin requested Read more »

 

WASTE

March 13th, 2025 by James Goudie KC in Planning and Environmental

A Local Planning Authority’s Minerals and Waste Local Plan can through the planning process regulate harm to a river network caused by nutrient pollution from agricultural waste, such as manure, and its disposal. The LPA are not required to assume that other regulatory regimes would operate effectively to prevent harm. So held in NFU v HEREFORDSHIRE COUNCIL ( 2025 ) EWHC 536 ( Admin ).

 

RIGHT OF WAY

March 13th, 2025 by James Goudie KC in Environment, Highways and Leisure

In relation to the use by the public of a way over land, and limitation, in RAMBLERS ASSOCIATION v SoS ( 2025 ) EWHC 537 ( Admin ) the Court considers the meanings in Section 31 of the Highways Act 1980 of “actually enjoyed” and “interruption.”

 

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