August 9th, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

The PSED is not triggered by a reformulation of policy, as distinct from a change of policy : Miyanji v SSHD (2017) EWHC 1939 (QB).



ECHR Articles 8 & 10

August 9th, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

In Southend Borough Council v CO (2017) EWHC 1949 (Fam) the Court held that the parents of children of children who had been removed into care were not obliged to delete an online Petition to Parliament protesting against the Court Orders. Given that there was no sufficient evidence that the Petition risked adversely impacting the children’s placements or causing them emotional harm, the children’s limited Article 8 rights were outweighed by the parents’ Article 10 rights. Parents have an important right to speak out against public authority intervention in their family where they consider that the intervention is unjust irrespective of the merits of the parents’ views.



ECHR Article 8

June 9th, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

Suspension and/or consequential publicity may damage reputation. When it does so Article 8 may be engaged.  Proportionality will then apply to the suspension.  See paragraphs 95-98 inclusive of Divisional Court Judgment in R (Crompton) v Police and Crime Commissioner for South Yorkshire (2017) EWHC 1349 (Admin).


Civil Rights and Obligations

May 10th, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

In Poshteh v Kensington and Chelsea RLBC (2017) UKSC 36 the appellant arrived in the UK in 2003 as a refugee from Iran, where she had been subject to imprisonment and torture. She gained indefinite leave to remain in 2009, the year in which she applied to the respondent council for accommodation as a homeless person. In November 2012 the respondent offered the appellant accommodation in Norland Road, London in a first floor, two-bedroom flat. The appellant’s concerns about the physical features of the property (including the small size of the windows) were first raised in correspondence of 29 November 2012, including a letter from the appellant’s therapist and her GP, and in a solicitors’ letter of 30 August 2013. The appellant ultimately refused this “final offer” of permanent accommodation at the property on the basis that it had features which reminded her of her prison in Iran and which would exacerbate her post-traumatic stress disorder, anxiety attacks and other conditions. Read more »


Threshold for engaging ECHR Article 8

April 11th, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

In SXH v CPS [2017] UKSC 30 the Supreme Court held that, although ECHR Article 8 is broad, it is not so broad as to encompass everything done by a public authority which has the consequence of affecting someone’s private life in a more than minimal way. Neither the Strasbourg authorities nor domestic case law supports the contention that the institution of criminal proceedings, for a matter which is properly the subject of the criminal law and for which there is sufficient evidence, may be open to challenge on Article 8 grounds. It would be illogical; for if the matter is properly the subject of the criminal law, it is a matter for the processes of the criminal law. The criminalisation of conduct may amount to an interference with Article 8 rights. However, if it does not amount to an unjustifiable interference, then neither does the decision to prosecute for that conduct.

It was argued that Article 8 applied to the decision to prosecute for two reasons: it “targeted” conduct which was itself protected by Article 8, and its consequences were to interfere with the enjoyment of the appellant’s private life. It was submitted that the range of Article 8 is broad, that the threshold for it to apply is low, and that it is almost inevitable that the decisions of the CPS, as a public body, will impact on the private life of the defendant and so engage Article 8.  It was argued that anything done by a public body which has the consequence of affecting someone’s private life in a more than minimal way involves interference with respect for it within the meaning of Article 8.

The Supreme Court said that, broad as Article 8 undoubtedly is, the consequentialist argument advanced was far too broad. Lord Toulson took an example far removed from the present case. If a highway authority closes a road for roadworks, or introduces a partial closure, there may be a more than minimal effect on how long it takes residents to get to work, but that cannot be enough to make Article 8 applicable. “Such matters are part of the ordinary incidents of daily life in a community and involve no lack of respect for personal autonomy of the kind which Article 8 is designed to protect”.


No ECHR retrospectivity

April 11th, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

Those who have incurred financial obligations in reliance on a statute have a legitimate expectation that the statute would not be retrospectively repealed or otherwise invalidated to their detriment. Their right to recover costs constituted a right under Article 1/1 of the ECHR.  A newspaper publisher’s freedom of expression under Article 10 is also a fundamental principle.  However, in the circumstances of Times Newspapers v Flood [2017] UKSC 33 the Supreme Court held that the Art 1/1 rights prevailed.


Costs Funding

March 23rd, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

In HB v A Local Authority and The Local Government Association (2017) EWHC 524 (Fam) MacDonald J rejected an argument that the High Court had by reference to ECHR Articles 6 and/or 8 to order a local authority to fund the legal costs of a person denied legal aid on means test grounds without breach of the ECHR and lawfully.  The argument constituted an impermissible attempt to circumvent the jurisdiction of the Administrative Court operating by reference to judicial review principles.  Nor did the inherent jurisdiction of the High Court with respect to children give it the power to require a local authority to incur expenditure to fund the legal representation of a litigant who had been lawfully refused legal aid in accordance with the statutory legal aid scheme put in place by Parliament. Authority for public expenditure required clear statutory authority.  This had to be in clear, express and unambiguous language.  Within that context, a general power or duty could not be used to circumvent a clear statutory code. The examples of cost funding jurisdictions relied on as indicating that the Court could properly find a power under the inherent jurisdiction to make a costs funding order against the local authority each had as their foundation a clear and unambiguous statutory power to award funds for a specific purpose.  There was no suggestion in the statutory code that Parliament intended the civil Courts to be able to make orders providing the funding for advice and representation outside the terms of the statutory scheme.  In circumstances where the Legal Aid Agency had taken a lawful decision by reference to a lawful and comprehensive statutory scheme to refuse legal aid, an order under the inherent jurisdiction for public funding from an alternate public authority for the same purpose would plainly constitute an attempt to sidestep a clear statutory code using a general power.



February 10th, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

The unanimous Supreme Court Judgment on 8 February 2017 (2017) UKSC 8 on the Northern Ireland application for judicial review by Denise Brewster, allowing her appeal from a majority Judgment of the Northern Ireland Court of Appeal (2013) NICA 54 concerned a requirement in the Northern Ireland Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 (the “2009 Regulations”) that unmarried co-habiting partners be nominated by their pension scheme member partner in order to be eligible for a survivor’s pension. There is no similar nomination requirement for married or civil partner survivors. The Northern Ireland High Court held that the requirement of nomination of a cohabiting partner in the 2009 Regulations was incompatible with Article 14 of the European Convention on Human Rights (which prohibits discrimination) read together with Article 1 Protocol 1 (peaceful enjoyment of possessions) (“A1P1”). The Court of Appeal allowed the respondents’ appeal, finding that the nomination requirement was neither unjustified nor disproportionate. In the meantime, prompted by the judgment of the High Court, the equivalent regulations in England and Wales and in Scotland were amended to remove the nomination requirement in those schemes. When the appellant became aware of these changes, she applied for her appeal to be re-opened. Read more »


Prisoner Rehabilitation

February 1st, 2017 by admin in Human Rights and Public Sector Equality Duty

In Ansari v Aberdeen City Council (2017) CSIH 5 the Inner House of the Court of Session held that the Council owed no relevant duty to Mr Ansari under ECHR 5 to provide a reasonable opportunity for him to rehabilitate himself, in accordance with R (Haney) v Secretary of State for Justice (2015) AC 1344.  He claimed that both Scottish Ministers and the Council were in breach of that duty.  The issue was whether a relevant case had been made against the Council.  He argued that all public authorities were bound to act compatibly with ECHR rights, and that for the rights he claimed to be effective, both respondents should be subject to the duty to provide him with a reasonable opportunity for rehabilitation, having regard to the various statutory responsibilities on the Council. There was a risk of a gap he argued between the obligations arising in statute and the prisoner making progress in the phase of being partly in prison and partly outside prison.

Delivering the opinion of the Court, Lord Bracadale, who sat with Lady Paton and Lord Malcolm, said, at paragraph 26, that the duty in question was imposed on the State. It had the power to detain the prisoner relying on Article 5(1)(a), and implicitly also the duty to provide the prisoner with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public. The Scottish Ministers accepted that the duty is incumbent on them.

“In our view”, he continued, at paragraph 27, “the Lord Ordinary was correct to hold that the local authority is in a different position. It is not responsible for the detention or release of the prisoner. It is not required to justify the continued detention for public protection reasons. The role of the local authority is to provide assistance in certain areas of the rehabilitation process before and after release. In carrying out its role in relation to rehabilitation of a prisoner the local authority operated on behalf of the Scottish ministers”. Since the Ministers accepted the duty on them, “no question of a duty gap arises”.

The fact that the Council was a public authority “does not create a freestanding duty to provide the petitioner with reasonable opportunities for rehabilitation in circumstances in which the [council is] not responsible for his imprisonment or release… The local authority having no responsibility for the decision to continue the detention of the petitioner, there is no basis for reading into article 5 an implied duty incumbent on it to facilitate his release”: paragraph 29.


Human Rights Damages

January 19th, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

In GD v Wakefield Council and West Yorkshire Police (2016) EWHC 3312 (Fam) Cobb J awarded damages for the significant harm caused by local and police authorities that had breached the ECHR Articles 6 and 8 rights of a mother and her two children in the conduct of investigations and public law proceedings under Part IV of the Children Act 1989.