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 »

 

ECHR Articles 9 and 14

May 1st, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (Adath Yisroel Burial Society) v Senior Coroner for Inner North London (2018) EWHC 969 (Admin) a Divisional Court (Singh LJ and Whipple J) observed (paragraph 94) that in Eweida v UK the ECtHR emphasized the importance of the rights set out in Article 9, and stated that there are several things of importance to note about the terms of Article 9:-

“96.      First, it does not protect only freedom of religion. It protects freedom of all thought (including the beliefs of those who have no religious faith) and freedom of conscience.

Read more »

 

ECHR Article 1/1

February 15th, 2018 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (Mott) v Environment Agency (2018) UKSC 10 the Supreme Court ruled that in the case of “control” short of “expropriation” consideration must be given to whether the effects are “excessive and disproportionate” (para 32), drawing a “fair balance” between public and private interests (para 33), and that compensation is potentially relevant (paras 33-35). Nonetheless (para 37), (1) the national authorities have a “wide margin of discretion” in the imposition of necessary environmental controls, (2) A1/P1 of the ECHR gives “no general expectation of compensation for environmental effects”, and (3) where an authority has given proper consideration to the issue of “fair balance”, the Courts should give weight to their assessment.

 

Human Rights Time Bar

December 6th, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

Section 7(5)(a) of the Human Rights Act 1998 provides that proceedings must be brought before the end of the period of one year beginning with the date on which the act complained of took place. In O’Connor v BSB (2017) UKSC 78 the Supreme Court considered whether a discrimination claim was time-barred, and, reversing the Court of Appeal, unanimously held that it was not. Read more »

 

ECHR Articles 8 and 14

November 29th, 2017 by James Goudie QC in Human Rights and Public Sector Equality Duty

In Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2017] EWCA Civ 1916 an issue arose whether a provision in the Fatal Accidents Act (“the FAA”) was compatible with Article 14 of the ECHR (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life), and therefore whether the bereavement damages regime under the FAA falls within the ambit of Article 8, so as to engage Article 14.  In order to bring herself within Article 14, Ms Smith did not have to show that the State had infringed her rights under Article 8.  She did need to show that her complaint fell within the “ambit” of Article 8.

Read more »

 

PSED

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).