Functions of a Public Nature

February 13th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

Fearn and Others v Board of Trustees of the Tate Gallery (2019) EWHC 246 (Ch) is an injunction case brought in nuisance and under the Human Rights Act 1998 (“the HRA”) to protect what are said to be Article 8 rights of privacy in flats in a development on the south side of the Thames adjacent to the Tate Modern. One issue, under Section 6(3)(b) of the HRA, was whether the Tate, given Section 2(2) of the Museums and Galleries Act 1992, significant public funding, and controls by state officials, is a “hybrid” public authority against whom the HRA can be directly enforced.

Mann J addressed the law on “hybrid” public authorities from paragraph 108 of his Judgment, and the question whether the Tate is such an authority from paragraph 121. At paragraph 123 he said that the Tate displayed, to some degree, some of the factors which are said in the authorities to be relevant to the question whether the Tate is exercising public functions. None of them, however, were determinative. Read more »



January 28th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

Dylan Powell v Dacorum Borough Council (2019) EWCA Civ 23 concerned an application for an order suspending a warrant for possession.  The warrant had been issued, at the request of the Council, as landlord, in enforcement of a possession order of residential premises.  The issue on the appeal was whether the application, which was refused, should have succeeded, on the basis that, in pursuing the enforcement, the Council acted in breach of the PSED.  The appeal was dismissed. Read more »


Religious Rights

January 24th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

R (Atta Ul Haq) v Walsall Metropolitan Borough Council (2019) EWHC 70 (Admin) was a claim for judicial review in which the Claimant challenged the lawfulness of a policy adopted by the Defendant, Walsall Metropolitan Borough Council, entitled ‘Rules and Regulations in respect of Cemeteries and Crematoria’ (the “Cemetery Policy”), specifically those provisions which preclude individuals from erecting raised edging around the grave of a deceased person. The Claimant is a practising Barelvi Muslim. His father was a prominent member of the community and an Imam, passed away on 21 June 2015 and was buried on the following day at Streetly Cemetery. It is administered by the Defendant local authority. The Defendant had refused to give the Claimant permission for the erection of a four-inch raised marble edging around his father’s grave. The Claimant’s request arises from his religious belief that the grave is sacrosanct and stepping on the grave is an offensive, religiously proscribed act that must be prevented. Read more »



January 22nd, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

An individual is vulnerable to exploitation because of physical and/or mental disability. Their flat has been taken over by others to deal drugs. This is a situation known as “cuckooing”. The individual’s local authority or housing association landlord seeks a possession order, on the ground of anti-social behaviour, involving drug use, in the flat, which causes distress to fellow residents, over an extended period of time. This situation has not been considered by the Courts in the context
Read more »


Human Rights

December 17th, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

The Judgment on 10 December 2018 in the EAT of Elisabeth Laing J in OFGEM v Pytel is instructive on when it is possible to read and give effect to a statutory provision so as to make it compatible with ECHR rights. The balance to be struck between the rights of putative whistleblowers and the safeguarding of rights to restrict the circulation of business information obtained in the exercise of regulatory functions was for Parliament and the Secretary of State, not for the Courts.


Unlawful Discrimination

November 29th, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (Stott) v SoS for Justice (2018) UKSC 59 the Supreme Court considered the scope of “other status” within the Article 14 prohibition of the ECHR.  Lady Black, delivering the principal Judgment, said, at paragraph 80, that when considering an as yet unconsidered characteristic, a Court will have in mind the nature of the grounds it was thought right to list specifically.  However, a strict ejusdem generis interpretation would be unduly restrictive. At paragraph 81, Lady Black said that, although “not open-ended”, the grounds within Article 14 are to be given “a generous meaning”.


Human Rights

July 25th, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

A number of propositions are confirmed by the Court of Appeal in JT v First-Tier Tribunal (2018) EWCA Civ 1735:-

Proprietary Interest
1. Article 1/1 of the ECHR protects an individual’s right to peaceful enjoyment of possessions;
2. These include –

i) Various intangible rights, and
ii) Legitimate expectations to payments or assets of various kinds;

3.Welfare benefits are within its ambit; Read more »


Council Resolutions

July 4th, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

R (Jewish Rights Watch) v Leicester City Council (2018) EWCA Civ 1551 concerns a non-binding Full Council Resolution on a controversial matter. The Council resolved “insofar as legal considerations allow, to boycott produce originating from illegal Israeli settlements in the West Bank until such time as it complies with International law an withdraws from Palestinian Occupied territories.” Jewish Human Rights Watch argued that the resolution singled out Israel for criticism, and that the Council failed to consider the effect of so doing on the Jewish community in the UK, and in particular in and around Leicester, in breach of the PSED.  The Court of Appeal, upholding the judgment of the Divisional Court, held that on a reading of the Resolution, and of the transcript of the debate which preceded its adoption, it was clear that the Councillors had due regard to the matters set out in Section 149 of the Equality Act 2010 and had thus satisfied the PSED. Read more »


PSED and Planning

June 25th, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

R (Buckley) v Bath and North East Somerset Council (2018) EWHC 1551 (Admin) was a claim for judicial review of a decision by the LPA to grant outline planning permission for a residential development comprising the demolition of up to 542 dwellings and the provision of up to 700 dwellings. One of the grounds of challenge was alleged breach of the PSED. Did the PSED apply to the grant of outline planning permission.  Lewis J said as to the applicability of the PSED:- Read more »


Breach of ECHR Article 8

May 31st, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (McDonagh) v Enfield LBC (2018) EWHC1287 (Admin) the Council was found to be in breach of the homelessness legislation, but there was no entitlement to damages for that breach under ECHR Article 8.  Breaches of statutory duty under Part VII of the Housing Act 1996 do not by themselves constitute contraventions of Article 8.  In all the circumstances of the case the Council had not acted incompatibly with Article 8.  A number of matters led the Judge to that conclusion.

Firstly, in considering all the circumstances of the case, it is important to consider not merely the fact of a breach of statutory duty, but also the nature of any breach. Here, the Defendant was making efforts to find suitable accommodation for the Claimant and her family. It was in breach of statutory duty because it could and should have taken more steps by recognising its duties lay under Part VII, but this was not a case of a flagrant breach where the Claimant’s needs were wholly disregarded. The degree of culpability on the Defendant’s part was not great. Read more »