May 22nd, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

The appeal in AB v WORCESTERSHIRE COUNTY COUNCIL and BIRMINGHAM CITY COUNCIL (2023) EWCA Civ 529 concerned circumstances in which a local authority may be held liable for a breach of the human rights of a child under ECHR Article 3, inhuman or degrading treatment, when the child is said to have been subject to neglect or ill-treatment by a parent, and that authority did not take effective operational measures, steps under the Children Act 1989, to provide protection by seeking a care order to remove the child from the care of the parent. Lewis LJ observed at para 13 that the principles governing Article 3 are well established in the case law, and are usefully summarised in X v BULGARIA (2021) 50 BHES 244 at para 177/178. Lewis LJ continued:-

“14. Thus, Article 3 prohibits a state from inflicting inhuman or degrading treatment or punishment. It also imposes certain positive obligations on the state. These include putting in place a legislative and regulatory system for protection (often referred to as the “systems duty”). They also include an obligation to take operational measures to protect specific individuals from a risk of being subjected to treatment contrary to Article 3 (often referred to as “the operational duty”). They also include an obligation to carry out an effective investigation into arguable claims that treatment contrary to Article 3 has been inflicted (often referred to as the “investigative duty”).

15. This appeal concerns only the second of those obligations, that is the positive obligation to take operational measures to protect specific individuals against the risk of being subject to treatment contrary to Article 3 of the Convention.”

See also paras 56-64 inclusive, especially as to the four components to the positive operational obligation and principles governing its interpretation and application. In this case there was no realistic prospect of breach of the operational duty on the part of either local authority being established: paras 71, 79 and 87-89 inclusive. The evidence did not establish that there was any “real and immediate risk” of there being treatment by the mother that would fall within Article 3. Moreover, judged reasonably, neither authority failed to take appropriate measures to address any risk that might exist by adopting measures which were less intrusive than seeking a care order.



May 22nd, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

There can be a tension between the  Article 8 right to private life under Article 8 of the ECHR  and the right to freedom of expression under Article 10. This is addressed by the Court of Appeal in STOUTE v NEWS GROUP NEWSPAPERS (2023) EWCA Civ 523. The basic principle is that a claim for misuse of private information will succeed only if both of two conditions are satisfied : (1) the claimant has a reasonable expectation of privacy in respect of the information; and (2) the right to privacy outweighs the defendant’s right in the circumstances to freedom of expression.

Various circumstances are relevant to whether a reasonable expectation of privacy exists. Various criteria have been established as relevant to the balance between the rights.

The circumstances and criteria include that (i) photographs require special consideration, because they are particularly intrusive, 9ii) a person is less likely to have a reasonable expectation of privacy with respect to a photograph taken in a public place, but that is not an absolute rule, and (iii) such a claim is more likely to succeed if the photograph involves the depiction of something private.



March 23rd, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

R (ANGELL) v SOS for HEALTH and SOCIAL CARE (2023) EWHC 495 (Admin) is concerned with whether there is a breach of the ECHR by failing adequately to inform the public about potential health risks. Stacey J states that Judicial Review is not an appropriate vehicle for determining contested scientific matters: paras 59 and 60. She further states that ECHR Article 2 requires the establishment of a framework designed to provide effective deterrence against threats to the rights of life: paras 62-66 inclusive, and for the purpose of Article 8 severe environmental pollution could affect private and family life: paras 48, 49 and 67. State authorities have a positive obligation to provide access to essential information enabling individuals to assess risks to their health and lives: paras 50 and 76. In certain circumstances that duty can extend to providing such information, rather than merely providing access to it: para 51.



January 5th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (Isherwood ) v Welsh Ministers (2022) EWHC 3331 ( Admin ) Steyn J considered the case law on the interpretation of Art A2P1 and summarised the points emerging from them : Paras 169-198 inclusive. She also stated ( at para 129 ) that common law constitutional rights can be abrogated by legislation expressly or by necessary implication, but only if it is crystal clear that the legislature intended to override the fundamental right. A reasonable implication will not suffice. The implication must be one that truly necessarily follows from the express provisions of the legislation, construed in their context.



April 28th, 2022 by James Goudie KC in Human Rights and Public Sector Equality Duty

In Gardner v SoS for Health and Social Care (2022) EWHC 967 (Admin) a Divisional Court dismisses claims under the Human Rights Act, but upholds common claims in respect of documents that set out an “irrational” policy in “failing” to advise that where a Covid asymptomatic patient was admitted to a Care Home, he or she should, as far as practicable, be kept apart from other residents for 14 days. At para 139 the Court stated that it cannot be said, as a general proposition, that the adjudication of past alleged breaches of duty which have now been repeated is always academic or a hypothetical exercise in the context of judicial review.

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April 5th, 2022 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (SHEAKH) v LAMBETH LBC (2022) EWCA Civ 457 a challenge to the authority’s discharge of the PSED failed in relation to 3 Experimental Traffic Orders relating to Low Traffic Neighbourhoods. At para 10 the. Court of Appeal emphasized 5 points: (1) Section 149 of the Equality Act 2010 does not require a substantive result; (2) Nor does it prescribe a particular procedure; (3) It does however imply a duty of reasonable enquiry; and (4) It requires a decision-maker to understand the obvious equality impacts of a decision before adopting a policy; (5) Courts should not engage in unduly legalistic investigation of the way in which an authority has assessed the impact of the decision on the equality needs. See also paras 11-18 inc for an update on the BRACKING Principles.


Article 8

February 24th, 2022 by James Goudie KC in Human Rights and Public Sector Equality Duty

In Craig v Her Majesty’s Advocate (2022) UKSC 6 the Supreme Court consider the “in accordance with the law” element within Article 8(2) of the ECHR. An interference with Article 8(1) guaranteed respect for private and family life is capable of being justified under Article 8(2). Such interference can be justified only if (1) it is “in accordance with the law”, (2) pursues a “legitimate aim”, and (3) is “necessary in a democratic society”.  The Supreme Court explains at paragraph 49 that in order to satisfy the first of those three requirements, the interference must be in accordance with domestic law and the domestic law must meet the requirements of the rule of law, so as to afford adequate legal protection against arbitrariness. The Supreme Court states at paragraph 50 that this is an absolute requirement. There is no margin of discretion in meeting it.



January 24th, 2022 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (TP) v SoS (2022) EWHC 123 Admin) the Court reiterates the relevant legal principles on discrimination under Article 14 of the ECHR from paragraph 98 as follows.

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Modern Slavery

December 3rd, 2021 by James Goudie KC in Human Rights and Public Sector Equality Duty

Art 4 of the ECHR provides that no one shall be held in slavery or servitude. Positive duties are implicit in Art 4: (1) a systems duty, a general city to implement measures to combat trafficking; (2) an investigation duty, to investigate situations of potential trafficking; and (3) a protection duty, or operational duty, to take steps to protect individual victims of trafficking. The protection duty is engaged when state authorities are aware of circumstances giving rise to a credible suspicion that an identified individual has been, or was at real and immediate risk of being, trafficked or exploited. See R (H) v Swindon BC (EWCA) Civ 1836.



September 28th, 2021 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (Cornerstone) v OFSTED (2021) EWCA Civ 1390 the Court of Appeal held that OFSTED had power to require Cornerstone to disapply or modify its recruitment policy for foster carers, as contained in its charitable instrument, notwithstanding the views of the Charity Commission. Different regulators May each reach their own conclusion within their respective competencies. When carrying out Inspections, OFSTED is entitled to have regard to the Equality and Human Rights Acts.
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