Rates

June 3rd, 2013 by James Goudie KC in Council Tax and Rates

Premises will be “wholly or mainly used for charitable purposes”, for the purposes of assessing whether a registered  charity is entitled under Section 43(6)(a) of the Local Government Finance Act 1988 to mandatory charitable relief from non-domestic rates only if the charity makes extensive use of the premises for charitable purposes.  In Public Safety Charitable Trust v Milton Keynes Council [2013] EWHC 1237 (Admin) Sales J held that merely some charitable use of the premises was not enough, following Kenya Aid Programme v Sheffield City Council [2013] EWHC 54 (Admin).

 

Rates

May 31st, 2013 by James Goudie KC in Council Tax and Rates

Does the fact that no more than a minute fraction of the area encompassed within premises is used (by the presence of blue-tooth apparatus) prevent occupation being rateable occupation?  No, holds Wilkie J in Sunderland City Council v Stirling Investment Properties Ltd [2013] EWHC 1413 (Admin).  Wilkie J further holds, applying Arbuckle Smith v Greenock Corporation [1960] AC 813, that it is not relevant, for the purpose of rateable occupation, that the nature of the use to which the hereditament is put is different than that which was described in the rating list. There is nothing in the legislation which limits the ability of a local authority to levy rates to occupation for a purpose which is identical to the description of the hereditament in the rating list. The issue of any apparent disconnect between the nature of the occupation of an hereditament and its description in the rating list is a matter for the valuation officer to address if he thinks that a new, or additional, hereditament may have been brought into existence.

 

Consultation

February 26th, 2013 by James Goudie KC in Council Tax and Rates

In R (Stirling) v Haringey LBC (2013) EWCA Civ 116 the Court of Appeal were concerned with a claim for Judicial Review of the Council’s Council Tax Reduction Scheme pursuant to Section 10 of the Local Government Finance Act 2012 and Regulations thereunder, replacing Council Tax Benefit.  The Council were required to, and did, publish a draft Scheme and consult upon it, against the background of a 10% reduction in the funding given by Central Government to local authorities for council tax support.  The challenge was as to the consultation process.

There were three grounds: (1) that consultees were not provided with sufficient information to enable them to appreciate that there were alternatives to the draft scheme;  (2) that the information provided in the Consultation Document, as to the shortfall that would have to be met by the Council, was not accurately and fairly presented; and (3) that the Council should have told consultees about the Transitional Grant Scheme (“TSG”), and asked them if they wished to make any, or any further, responses in the light of the availability of that Scheme.  The second ground was not pursued in the Court of Appeal.

Dismissing the first ground, Sullivan LJ said, at paragraph 15:

“It is one thing to say that when options for change are presented in a consultation paper … they must be fairly presented, it is quite another to submit … that in order to be fair a consultation paper must present information about other options that have been rejected. What fairness requires depends on the circumstances of the particular case. In some statutory contexts a decision maker may be required, or may choose to consult as to which of a number of options should be adopted.”

However, Sullivan LJ continued, in paragraph 16, alternatives to a preferred scheme do not in all cases have to be mentioned as having been rejected.  At paragraph 18, Sullivan LJ stated that, in the particular statutory context, fairness did not require the Council, in the consultation process, to mention other options which it had decided not to incorporate into its published draft Scheme.  Much less did fairness require that the Consultation Document contain an explanation as to why these options were not incorporated in the draft Scheme.  At paragraph 19, Sullivan LJ went on to say that, evenif the statutory scheme had been less prescriptive and more open-textured as to the subject matter of the consultation process, he would not have concluded that the Consultation Document’s failure to mention the other possible ways of meeting the shortfall in Central Government funding rendered the consultation process unfair. The existence of the three options relied upon by the Appellant – raising Council Tax, reducing other Council services or utilising some of the Council’s reserves – were all reasonably obvious ways of meeting a shortfall in Central Government funding, and the form of the Consultation Document did not prevent consultees from suggesting them as possibilities. This was not a case in which the failure to mention the three options in the Consultation Document might have had the consequence that the decision-maker would have failed to appreciate their existence. The full Council would have been well aware of these three ways of meeting a shortfall in Central Government funding.  

Dismissing the third ground, the Court of Appeal held that the change of circumstance constituted, in the public domain, by the TSG, though plainly relevant, was not a change of such significance that the Council was bound to draw attention to it, or to commence the consultation process afresh.

 

Council Tax

November 23rd, 2012 by James Goudie KC in Council Tax and Rates

Two new Statutory Instruments, the Council Tax Reduction Schemes (Prescribed Requirements) (England) Regulations 2012, SI 2012/2885, and the Council Tax Reduction Schemes (Default Scheme) (England) Regulations 2012, SI 2012/2886, make provision for the new, localised, council tax support schemes in England, which come into effect on 1 April 2013.  They replace council tax benefit.  All billing authorities in England are required to have their own scheme.  The Default Scheme Regulations make provision for a default scheme that will apply to those billing authorities that have not made their own scheme by 31 January 2013.  Otherwise all schemes made by authorities, approved by Full Council, must include those matters that are prescribed in the Prescribed Requirements Regulations, as well as those matters which are required to be included in local schemes by paragraph 2 of Schedule 1A to the Local Government Finance Act 1992, as inserted by the Local Government Finance Act 2012, section 10 and Schedule 4.

 

Procedural Fairness

June 27th, 2012 by James Goudie KC in Council Tax and Rates

R (Dudley MBC) v SoS for CLG [2012] EWHC 1729 (Admin) concerned a decision by the SoS to change the way in which he would make payments pursuant to s88B of LGFA 1988/s31 of LGA 2003 under a PFI scheme.  There were five grounds of challenge. The first, procedural fairness, relating to consultation, succeeded.  The other four failed. They were breach of a substantive legitimate expectation; application of a rigid and inflexible policy; failure to take relevant facts into account/error of fact; and breach of the PSED under s149 Eq A 2010.

As to the first ground, Singh J considered both whether there was a duty of consultation, and, on the basis that there was, the requirements of a lawful consultation.  As to the former, there were two bases on which the Council argued that it was entitled to be consulted before the decision was taken to withdraw the PFI grant on a declining balance basis and to replace it with the annuity basis. The first was that it had a legitimate expectation that there would be consultation based on the defendant’s past practice. The second was that, quite apart from such a procedural expectation, the claimant had an expectation that its grant would continue to be paid on the declining balance basis and that fairness required that, before it was withdrawn, it would be consulted on this issue. Singh J observed that it was important to note that, in making the second of those arguments, the Council for this purpose relied on its expectation not to argue that the SoS was not entitled to reach the decision he did at all (that was the subject of a separate ground, based on the doctrine of substantive legitimate expectation), but that, before he did so, he had to follow a fair procedure. In other words, for this purpose, the Council submitted that its expectation gave rise to procedural rights, not substantive rights.

So far as the Council’s first argument was concerned, Singh J observed that in principle a legitimate expectation of consultation (i.e. a procedural expectation) can arise either from a promise that there will be consultation or from a past practice of such consultation. In the present case, the Council did not suggest that there was any promise of consultation. However, it did contend that there had been a past practice of consultation. Singh J, however, was not persuaded by that argument. All that the Council was able to rely on was the fact that in 2004 the SoS did consult when consideration was given to introducing the annuity basis as an alternative to the declining balance basis. In Singh J’s judgment, one incident of consultation of that type could not amount to a practice of consultation such as to give rise to a legitimate expectation of such consultation in the future.

However, the Council’s second argument did not depend on either a promise or a past practice of consultation. The starting-point is that, if a decision-maker intends to take a decision which affects a person’s rights, the duty to act fairly (in earlier parlance “natural justice”) will usually be required by public law, which will imply such a duty into a statutory scheme even when none is expressly laid down.

Singh J considered a number of previous authorities, concluded that the SoS’s decision “fundamentally altered the nature of the commitment” which had previously been made by the SoS to fund capital projects, that the impact on the Council was “pressing and focussed”, that there was a small and limited class of local authorities that were affected by the SoS’s decision, and that (para 69): “To make the decision abruptly without consultation would, in the circumstances of the present case, be so unfair as to amount to an abuse of power”.

Singh J went on to consider whether the requirements of a lawful consultation had been met.  He concluded that they had not.  Consultation had not been at a formative stage of the decision-making process.  The decision letter invited representations only as to how the impact of the decision might be mitigated in the Council’s case, but not about the principle of the decision itself.

As regards the PSED, Singh J said:

“93.      I accept the defendant’s submissions in relation to this ground of challenge. As the authorities have frequently stressed, what is “due regard” is such regard as is appropriate in all the circumstances. In my judgement, the defendant was not required to have regard to the matters set out in section 149 of the Equality Act for two main reasons.

94.       First, the suggested impact is a contingent and indirect one. The defendant’s decision was a financial one. It will frequently be the case that the central government makes financial decisions of a general kind which leave up to individual local authorities the manner of their implementation. The relevant authorities may have a choice about whether they cut or reduce a particular service or how they find alternative funding for it if they feel that service should continue. The local authority concerned may well have to perform the Public Sector Equality Duty itself before it decides which of various courses it should take in order to implement the financial decision of the central government.

95.          Secondly, and in any event, the defendant was entitled to take the view that he did, that the detrimental consequences which the claimant suggests would flow from the decision under challenge are not only contingent but lie some years ahead in the future, given the funding that the defendant has made available to the claimant until 2015. The defendant’s simple submission was that, in those circumstances, the duty may arise in 2015 but cannot be said to have arisen now. There are too many vicissitudes in life for a court to be able to say that the defendant has breached the Public Sector Equality Duty as things stand at present. I accept that submission by the defendant.”

 

Community Right to Challenge

May 22nd, 2012 by James Goudie KC in Council Tax and Rates

On 17 May 2012, in exercise of powers conferred by sections 81 and 235 of the Localism Act 2011, the Secretary of State made the Community Right to Challenge (Expressions of Interest and Excluded Services) (England) Regulations 2012, SI 2012/1313.  They will come into force on 27 June 2012.  Regulation 3 and Schedule 1 specify requirements for expressions of interest for the purposes of Section 81(1)(b).  Regulation 4 and Schedule 2 specify services that are to be excluded for the purposes of Section 81(5), in some cases only until 1 April 2014.  The Secretary of State has also issued Statutory Guidance on the Community Right to Challenge.

RATES AND COUNCIL TAX

The Local Government Finance Bill, carried over from the last Session, completed its passage through the House of Commons on 21 May 2012.  In conjunction with the Bill, CLG has issued numerous publications. With respect to the Business Rates Retention Scheme they are:

·                      The economic benefits of local business rates retention

·                      The central and local shares of business rates  – A Statement of Intent

·                      Renewable energy projects – A Statement of Intent

·                      Pooling Prospectus

·                      The Safety Net and Levy – A Statement of Intent

With respect to Localising Support for Council Tax” they are:

·                      A Statement of Intent

·                      Funding arrangements consultation

·                      Taking work incentives into account

·                      Vulnerable people – key local authority duties (including, Chapter 2, the Public Sector Equality Duty, Chapter 3, duty to mitigate the effects of child poverty, Chapter 4, the Armed Forces Covenant, and Chapter 5, duty to prevent homelessness).

 

Council Tax and Public Procurement

May 14th, 2012 by James Goudie KC in Best Value, Council Tax and Rates

COUNCIL TAX

In Harrow LBC v Ayiku [2012] EWHC 1200 (Admin) Sales J held that the word “or” in the Council Tax (Exempt Dwellings) Order 1992, art 3 Class N, had a disjunctive meaning, therefore it was sufficient for the non-British spouse of a foreign student to satisfy one or other of the two conditions, namely being prevented from taking paid employment or being prevented from claiming benefits, in order to qualify as a “relevant person” who was exempted from liability to pay council tax.

PUBLIC PROCUREMENT

In Case C-368/10, Commission v Netherlands, Decision on 10 May 2012, the ECJ has reaffirmed, in the context of the supply to and management for a public authority of automatic coffee machines, that “both the principle of equal treatment and the obligation of transparency which flows from it require the subject-matter of each contract and the criteria governing its award to be clearly defined from the beginning of the award procedure … the formulation of the award criteria being such as to allow all reasonably well-informed tenderers exercising ordinary care to know the exact scope thereof and thus to interpret them in the same way”.

 

Council Tax, Environment, Procurement/Land Sale

March 26th, 2012 by James Goudie KC in Best Value, Council Tax and Rates, Environment, Highways and Leisure

Council Tax

Note the Local Authorities (Alteration of Requisite Calculations) (Wales) Regulations 2012, SI 2012/521 (W.82).

Environment

Note the Controlled Waste (England and Wales) Regulations 2012, SI 2012/811; and the Environmental Protection Act 1990 (Commencement No. 19) Order 2012, SI 2012/898 (C.28), repealing on 1 April 2012 s1 of the Refuse Disposal (Amenity) Act 1978 (provision by local authorities for disposal of refuse).

Procurement/Land Sale

In R (Midlands Co-Operative Society Ltd) v Birmingham City Council [2012] EWHC 620 (Admin) Hickinbottom J held (1) that a land disposal by the Council to Tesco did not engage the public procurement regime, because there was no commitment by Tesco, legally enforceable by the Council, to perform relevant works, either in a Section 106 agreement or at all; and (2) that the Council had achieved the best consideration outcome required by LGA 1972 s123.

 

Non-Domestic Rating & Capital Finance

March 9th, 2012 by James Goudie KC in Council Tax and Rates, Local Authority Powers

Non-Domestic Rating/Wales

Note the Non-Domestic Rating (Small Business Relief) (Wales) (Amendment) Order 2012, the Non-Domestic Rating (Deferred Payments) (Wales) Regulations 2012 and the Non-Domestic Rating (Demand Notices) (Wales) (Amendment) Regulations 2012, respectively Sis 2012/465 (W.76), 466 (W.77) and 467 (W.78).

Capital Finance

Note the Local Authorities (Capital Finance and Accounting) (England) (Amendment) (No 2) Regulations 2012, SI 2012/711, which amend the provisions in SI 2003/3146 dealing with the treatment of receipts from disposals made pursuant to Part 5 of the Housing Act 1985: the paying down of housing debt is made a permissible use of receipts, and a cap is set on those receipts that might be retained to cover part of the cost of re-purchasing former council homes.

 

Non-Domestic Rates, Public Sector Equality Duty & Community Care Assessments

March 6th, 2012 by James Goudie KC in Council Tax and Rates, Social Care

Non-Domestic Rates

Section 71 of the Localism Act 2011 (“LA 2011”) amends the Local Government Finance Act 1988 (“LGFA 1998”) to provide a power for the Secretary of State (“the SoS”) to prescribe by regulations conditions for the cancellation of certain backdated non-domestic rates, but only where a property is shown in a local non-domestic rating list compiled on 1 April 2005 as the result of an alteration of the list made after the list was compiled. Pursuant to that power there have now been made the Non-Domestic Rating (Cancellation of Backdated Liabilities) Regulations 2012, SI 2012/537 (“the 2012 Regulations”).

Non-domestic rates liability is usually discharged by instalments payable by the ratepayer. However, where a rating list is altered with retrospective effect by a Valuation Officer, this can lead to backdated liability which, rather than being payable in instalments, is payable straightaway. The 2012 Regulations make provision for the cancellation of certain backdated non-domestic rates liabilities, in certain circumstances.

Under Section 41 of LGFA 1988 most non-domestic properties appear on a rating list compiled for the area in which they are situated. Under Section 43, the occupiers of such properties are liable to pay non-domestic rates for each financial year. In certain cases where the property is unoccupied, the owner is liable to rates under Section 45.

The Non-Domestic Rating (Collection and Enforcement) Regulations 1989 (S.I.1989/1058) (“the 1989 Regulations”) govern the practicalities of billing for rates in respect of locally listed properties. They require the billing authority to issue to the ratepayer for each financial year a demand notice, setting out their liability to rates. Where a demand notice is issued, Regulation 7 of the 1989 Regulations provides for liability under the notice to be discharged either in instalments calculated in accordance with Part 1 of Schedule 1 or in accordance with an agreement reached between the billing authority and the rate payer.

Where the demand notice is issued after the end of the financial year, Schedule 1 does not apply and instead Regulation 7(5) provides that the notice shall require payment of the amount payable for the year in a single instalment. One of the circumstances in which a demand notice can be issued after the end of a financial year is where, pursuant to the duty to maintain an accurate list, the Valuation Officer for the billing authority area enters a nondomestic property on the rating list for the first time after the end of the year but with an earlier effective date. The effective date of an alteration to a rating list – including by way of adding properties to it – is governed by the Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009 (S.I. 2009/2268). Until a property is shown in a list, the conditions in Sections 43 and 45 of LGFA 1988 are not met and so no demand notice can be issued. Once those conditions are met, a demand notice will be issued in respect of liability from the effective date of the list entry.

In some cases where there is a difference between the day a rating list is altered and the effective date of the alteration, significant backdated liability can accrue. The 1989 Regulations were amended to include a new Schedule 1A which allowed – in certain circumstances – billing authorities to agree with the ratepayer that the liability which accrued between the effective date of the list alteration and the date it was actually made can be discharged in instalments over eight years. Further amendments to Schedule 1A of the 1989 Regulations allowed agreements under the Schedule to include a moratorium on payments of instalments until 31 March 2012. 

Section 71 of LA 2011 inserted Section 49A into LGFA 1988. This Section provides that the SoS may by Regulations provide that, in a prescribed case, the chargeable amount under Section 43 or 45 for a hereditament in England for a chargeable day is zero. But that relief is only available in relation to a hereditament and a chargeable day if the hereditament is shown for the day in a local non-domestic rating list compiled on 1 April 2005 and it is shown for the day as it is shown as the result of an alteration of the list made after the list was compiled, thereby constituting backdated liability. The Section also makes provision for the conditions that the SoS may prescribe. The 2012 Regulations constitute the first exercise of this power.

The 2012 Regulations therefore set out the limited circumstances in which a backdated liability may be cancelled, which relate to the hereditament and how it was formed, when it was entered onto the rating list, the identity of the ratepayer and the length of the backdated liability. The 2012 Regulations apply to England.

Public Sector Equality Duty (“PSED”)

In R (Barrett) v Lambeth LBC [2012] EWHC 4557 (Admin) Ouseley J held that the Council’s decisions, in the light of budget cuts which it had to make, not to continue annual grant funding for a small charity, PFC, providing services in Lambeth to people with learning disabilities and not to continue commissioning those services from the charity amounted to a decision no longer to provide such services and was a breach of the PSED, set out in Section 149 of the Equality Act 2010 (and previously Section 49A of the Disability Discrimination Act 1995), but not a breach of any duty to consult.

At paragraph 101, Ouseley J said:

“… I do not regard a decision on a function as compliant with the equality duties, and this would apply to many aspects of decision-making in a public body, if due regard is had by officers, and the different body which takes the decision relies simply on the fact that trusted officers have had due regard. It cannot say that it too has therefore had due regard. It is the decision-maker itself which must have due regard. … the provision of a fair summary of the EIA might suffice for the Councillors rather than the whole EIA, but it would have to cover the essential features of how the duty was being fulfilled. Decisions which created budgets for departments or sections at a higher level so that leeway was created for later decisions on the precise implementation of cuts could also suffice, with the equality duty being considered at the more detailed stage as in the Fawcett Society case.”

At paragraph 110, Ouseley J said:

“… There is no need for very detailed explanations and lengthy analysis so long as the features necessary for due regard to be had are properly understood. The analysis, whether in an EIA or not, does not have to resolve with reasons every issue which a party may raise. It does not have to be a reasoned decision letter.”

Community Care Assessments

In R (NM) v Islington LBC [2012] EWHC 414 (Admin) Sales J held that, in order for a local authority to be under an obligation to assess a person’s needs for community care under Section 47 of the National Health Service and Community Care Act 1990, it was (paragraph 77) necessary for the claimant to show that there was a “sufficiently concrete and likely prospect” of a need for such services arising. Sales J said:

“The words “may be in need” are in the present tense and do not import a flavour of coverage of possible needs which may arise in the future, … In context, the word “may” is apt because it indicates that there has to appear to the relevant local authority a significant possibility that the person in question might have a present need for community care services to be provided to him by that local authority and it is that possibility which then has to be investigated by means of the assessment under Section 47(1)(a).”

Sales J continued, at paragraph 78:

“However, in a number of situations – such as release from mental hospital …discharge from hospital …and release from prison … it may be sufficiently clear that a person is likely in the very near future to be present in the area of the local authority and, when they are, may then be in need of community care services, so that the obligation of assessment under Section 47(1)(a) arises before the person actually arrives.”

At paragraph 79, Sales J said:

“In my view, this interpretation of the words “may be in need of any such services” as covering both cases of present need and a narrow penumbra of cases of reasonably predictable future need is justified by reference to the statutory purpose of Section 47 and of the community care provisions … to which it refers, namely to ensure that persons who may have needs of the requisite character (i.e. are vulnerable in some relevant way) have those needs assessed and met, and receive proper social welfare protection in respect of their vulnerability. To limit the obligation of assessment in Section 47(1) to cases where a person is already present in the area of a local authority or already presenting needs for the local authority to meet now in cases where a person is known to be about to require community care services in the near future would create a gap in time when the intended social welfare protection was not or might not be provided. Parliament cannot sensibly be supposed to have intended to allow such a gap in protection to exist.”

At paragraphs 81 and 82 he said:

“81. It is obvious that arranging for an assessment of needs may take some time and Section 47(5) makes clear that Parliament intended that social welfare protection should be provided in the interim – in the case contemplated by Section 47(5), by the local authority if the person is on their doorstep. But where the person’s needs are presently being met by another public authority (in this case the prison service), but it is reasonably clear that they may be about to need provision of services by the local authority, it is reasonable to infer that Parliament intended that the person’s needs should be assessed before arrival on the local authority’s doorstep – otherwise, there would be a risk of a real need, which would be recognised upon assessment but might be missed otherwise, going unmet for a period of time (i.e. between arrival on the local authority’s doorstep and the carrying out of the assessment and the taking of the decision under Section 47(1)(a) and (b)).

82. In further support of this interpretation of Section 47(1), I also consider that Parliament should be taken to have had in its contemplation when enacting Section 47 in 1990, the sort of situations in which the release of a person maintained in a mental hospital or the release on parole of a person in prison might well be informed by questions of the availability of care services for that person in the community. The relevance of such matters in such cases will not be unusual but could potentially arise in many cases. Against that background, it is reasonable to infer that Parliament intended that in appropriate cases a local authority should be required to make an assessment and decision under Section 47 so as to assist other relevant public bodies (for instance, in these examples, a secure mental hospital or the prison authorities, or Parole Board or mental health review tribunal) to take a decision affecting the liberty of the person in question and their general welfare. Their well-being might well be better promoted and their underlying needs better catered for by being at liberty and in the general community with appropriate support rather than in detention.”

The question then becomes, how definite does the likelihood of the local authority having responsibility for meeting the relevant needs of a person in future have to be before the obligation to assess under Section 47(1) arises? In the judgment of Sales J the true position lies between the contending situations that were made to him. At paragraph 85, he concluded:

“Parliament cannot have intended to create an obligation of assessment in relation to a very wide class of cases of future provision of services, since doing so would create a serious risk of scarce resources available to local  authorities for community care being wasted through assessments being carried out for no ultimate good purpose, thereby depleting funds available to provide much-needed services to vulnerable people who actually do require social welfare support from the local authority in question. In interpreting the intended ambit of the class of cases of future provision covered by Section 47(1), it is necessary to bear in mind that the relevant condition set out in the opening part of the provision is expressed in the present tense, so it is reasonable to suppose that Parliament intended the relevant extension to cover future cases on pragmatic grounds, as set out above, to be narrow. The future cases intended to be covered are those which are closely analogous to those where there is a (possible) present need for provision of community care. It is only in relation to such a narrow class that it can be said that “the contextual imperative” is so powerful as to allow the language in the present tense in Section 47(1) to be interpreted as covering future or future conditional cases …”

Sales J also considered Articles 5, 8 and 14 of the ECHR, and the UN Convention on the Rights of Persons with Disabilities, 2006 (“the CRPD”). He said:

“98. The CPRD is an unincorporated international treaty and so does not have direct effect in English law. It came into force and was ratified by the United Kingdom after the NHSCCA was enacted, so it cannot act as a potential aid to interpretation of that statute in cases of ambiguity. …

99. I confess that I do not find the relationship between the CPRD and the Convention rights in the ECHR and the HRA transparently clear under the Strasbourg jurisprudence and in what little domestic authority there is.100. It is, of course, well established that the ECHR is a “living instrument” whose meaning and application may vary over time as conditions change and where commonly accepted standards develop among the member states of the Council of Europe: … When interpreting concepts in the ECHR … the ECtHR looks to identify whether there is any consensus in the domestic law or practice of member states or any relevant development or trend in relevant international instruments which might supply an appropriate standard for judgment regarding the current meaning to be given to the rather open-ended Articles of the ECHR: … Further, when assessing the width of the margin of appreciation to be accorded to state authorities in a range of contexts, the identification of common European standards or a clear approach to the issue in other international instruments is a relevant factor as tending to narrow the margin of appreciation (or, if there is no consensus, as tending to widen it): …

101 There are examples of other international treaties which have been taken to inform the proper current interpretation of the Convention rights in the ECHR, such as the UN Convention on the Rights of the Child … and the Hague Convention on the Civil Aspects of International Child Abduction …

102. In principle, a point might be reached when the CPRD has been ratified by sufficient European states, or when sufficient European states have brought their domestic law and practice into line with the standards set out in the CPRD, that the CPRD or the practice flowing from it could be taken to amount to a relevant European consensus to inform the interpretation and application of the Convention rights. Also, though the position is less clear, a point might be reached where the CPRD is taken to be a leading international instrument establishing an appropriate standard against which to judge the conduct of member states of the Council of Europe, …

103. What is rather unclear at present is whether the CPRD has yet acquired this significance for the purposes of interpretation and application of the Convention rights (or some of the Convention rights). …

104. The ECtHR, in recent jurisprudence, appears to be ready to accord some weight to the CPRD when interpreting the ECHR, but its references to the CPRD have not been central to nor determinative of any finding of a violation of the ECHR: …

105. Domestic authority on the point is still more exiguous. …

107. … None of the Strasbourg or domestic authorities goes so far as to say that an individual can in substance rely directly on the provisions of the CPRD under the guise of relying on the ECHR Convention rights. …

107. … In my judgment, even if the content or application of the Convention rights in Articles 5, 8 and 14 of the ECHR is to be taken to be informed by Articles 19 and 26 of the CPRD, the interpretation of Section 47 of the NHSCCA which I have concluded is correct would be compatible with those provisions. …”

 

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