ECHR ARTICLES 8 AND 10

May 16th, 2024 by James Goudie KC in Human Rights and Public Sector Equality Duty

In BERG v TOWER HAMLETS LBC (2024) EWFC 92 the Court granted applications by journalists who sought the disclosure of transcripts and orders from deprivation of liberty safeguarding proceedings concerning an individual who had been subject to a deprivation of liberty order as a child, so that they could report on their contents.  It was in the public interest to know that the High Court was making orders restricting the liberty of children and young people and to be provided with the opportunity to understand the difficult decisions the Courts had to make and the competing considerations that had to be balanced when making such decisions. The former child (C) wished to contribute to the programme.

On a reading of Section 97 of the Children Act 1989 and Section 12 of the Administration of Justice Act 1960 the publication of the text or a summary of the whole or part of the Orders made in respect of C would not of itself be contempt of court, except where a Court having the power to do so had expressly prohibited the publication.  However, the publication of the transcripts of the hearings in respect of C and of the documents utilised at those hearings, or extracts, quotations or summaries of the same, would be a contempt of court unless expressly authorised by the Court.  When considering whether to relax the protection afforded by Section 2, the Court had to balance competing ECHR rights and to consider the proportionality of the potential interference with each right. The Court also had to consider carefully whether the Order sought was proportionate having regard to its aim.  Where Article 10 was engaged and fell to be considered in the balancing exercise, the Human Rights Act 1998 required the Court to have particular regard to the importance of Article 10 and, where the material in question was journalistic in nature, to the extent to which that information was already in the public domain or the extent to which it was, or would be, in the public interest for the material to be published.

By reason of C’s agreement to the disclosure and publication of the information sought, the rights engaged did not compete as starkly as in some cases.  However, where the material in issue was rendered confidential by operation of Section 12 of the 1960 Act, where the rights engaged were nonetheless in tension with each other to a degree, and in circumstances where the rights of other respondents to the proceedings were also engaged, it remained the Court’s responsibility to consider carefully the comparative importance of the competing rights and to consider the justification for interfering with or restricting each right.

The ambit of C’s Article 8 right to respect for private life was wide, encompassing the narrow concept of personal freedom from intrusion and her psychological and physical integrity, personal development and the development of social relationships and physical and social identity.  C made plain that she struggled with her mental health and has had difficulties adjusting to life as a young adult and forming relationships.  On the face of it, importance attached to C’s Article 8 right when placed in the balance. However, there were powerful justifications for interfering in those rights and in balancing the competing rights particular regard should be paid to the importance of the Article 10 right.

Here, C’s own Article 10 right was firmly engaged and constituted a powerful justification for interfering with her Article 8 right and the Article 8 rights of others.  That conclusion was reinforced where the BBC was providing psychotherapeutic support to C to safeguard her psychological integrity. Further, were was an important public interest in the public being able to understand and scrutinise the operation of the family courts.  That interest was particularly acute where the family court scrutinised and endorsed, or refused, intervention in family life by the State.  Similarly, there was a particular public interest in the applicants being able to publish information regarding orders restricting the liberty of children and young people, some of which, whilst lawful, were being made outside any statutory regime that had been the subject of democratic consultation and approval by Parliament.  Regarding proportionality, the interference in C’s Article 8 rights and the rights of other respondents was proportionate.  However, prohibiting the publication of the information sought would be a disproportionate interference with the Article 10 rights engaged (paras 30-52).

 

HUMAN RIGHTS CONSIDERATIONS AND HOMELESS PERSONS

April 25th, 2024 by James Goudie KC in Human Rights and Public Sector Equality Duty

The appeal in GHAOUI v WALTHAM FOREST LBC (2024) EWCA Civ 405 concerned the role of the Human Rights Act 1998 in the context of Part VII of the Housing Act 1996, which places duties upon local authorities in relation to homeless people.  Specifically, how should human rights considerations be factored in to the assessment for suitability of accommodation.  The Court of Appeal said, at para 36, that homelessness decisions may raise issues that engage Convention rights, but instances where a decision designed to relieve homelessness will amount to a violation will be rare. The question (para 37) is as to the lawful application of a proper definition of suitability to the circumstances of the case, identifying and weighing up relevant factors.

 

HUMAN RIGHTS ACT

April 17th, 2024 by James Goudie KC in Human Rights and Public Sector Equality Duty

In SOS for BUSINESS v MERCER ( 2024 ) UKSC 12 the Supreme Court, in relation to Trade Union legislation that fails to provide protection against sanctions short of dismissal penalising participation in lawful strike action, considers Section 3 of the Human Rights Act 1998 ( the interpretative presumption ) and Section 4 ( declarations of incompatibility ), and partially allows the appeal. Read more »

 

TRAVELLERS

April 9th, 2024 by James Goudie KC in Human Rights and Public Sector Equality Duty

In WARD V SoS for Levelling Up, Housing and Communities ( 2024 ) EWHC 676 ( Admin )  Lang J sets out the following principles : ( 1 ) the impact of development on the green belt is a matter of planning judgment, not law ; ( 2 ) the  law to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker, not the Court; ( 3 ) under the NPPF inappropriate development is by definition harmful to the green belt and should not be approved except in very special circumstances; ( 4 ) although a child’s best interests are a primary consideration they are not determinative of a planning issue. The Judge also considers Article 8 of the ECHR in relation to the special position of gypsies as a minority group.

 

PSED

March 20th, 2024 by James Goudie KC in Human Rights and Public Sector Equality Duty

When a breach of the PSED under Section 149 of the Equality Act 2010 is alleged, a failure, without good reason, to follow the Equality and Human Right’s Commission Guidance can be evidence of breach of duty. A breach was found in R ( DXX ) v SSHD ( 2024 ) EWHC 579 ( Admin ). The Commission’s Guidance about equality evidence, and in particular the collection of statistical data, was not followed.

 

FAIR HEARING : RIGHT TO SILENCE

February 12th, 2024 by James Goudie KC in Human Rights and Public Sector Equality Duty

Article 6 of the ECHR provides for a fair hearing when the determination by a public authority of civil rights and obligations is engaged. However, internal disciplinary proceedings will not generally engage Article 6.

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ECHR ARTICLE 11

November 21st, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

Article 11 of the European Convention of Human Rights protects the general right of freedom of peaceful assembly and freedom of association with others, and a specific right to form and join Trade Unions which applies in more limited circumstances. In INDEPENDENT WORKERS UNION OF GREAT BRITAIN v CENTRAL ARBITRATION COMMITTEE ( 2023 ) UKSC 43 the Supreme Court addresses whether there is an employment relationship for the purposes of Article 11 and whether the provision of Article 11 which protects Trade Union activity applies.

 

PROPORTIONALITY

July 21st, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

DALSTON PROJECTS LTD V SoS for TRANSPORT ( 2023 ) EWHC 1885 ( Admin ) considered proportionality in the context of interference with property rights from para 78. A proportionality challenge is ultimately a matter for the Court to determine and to do so with reference to all the information before it. That involves considering the substance of the decision, not the process of its making. Moreover, in coming to a judgment on proportionality, a court is not limited to assessing the decision-maker’s process, thinking or assessment at the time the decisions were made but can consider the matter in more general terms. However, although the Court itself determines proportionality objectively on the basis of its own assessment, a margin of discretion will be afforded to the decision-maker, to the extent that it has itself considered the relevant issues at the time of the challenged decision.

 

HUMAN RIGHTS ASSESSMENTS

July 20th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R ( DK ) v LONDON BOROUGH OF CROYDON ( 2023 ) EWHC 1833 ( Admin ) the claimant came came to the Uk and claimed asylum as an unaccompanied child. The Council duly accommodated and looked after him as a child in need. However, when he reached 21 and his asylum claim had been rejected the Council refused to support him any further. They relied upon Schedule 3 to NIAA 2002. He claimed that the Council should have carried out a human rights assessment.

Sir Ross Cranston ruled at paras 57-61 inc that what a local authority is required to do is to consider a request for the exercise of a power, or the performance of a duty, when support is requested by a person who but for NIAA Schedule 3 would be entitled to support. In applying the Schedule 3 prohibition the authority must consider that this does not breach ECHR rights. That may or may not involve a human rights assessment. A blanket refusal will not do.

 

ECHR ARTICLE 6

July 19th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty

In JONES v BIRMINGHAM CITY COUNCIL (2023) UKSC 27 a 7 Justice Supreme Court holds (1) that Article 6 does not require the criminal standard of proof to be satisfied in respect of proof that a person has engaged in or has encouraged or assisted gang-related violence or gang-related drug dealing activity or proof that a person has engaged or threatens to engage in anti-social behaviour, and (2) that Parliament has devised statutory schemes which conform with the requirements of a fair hearing under Article 6 under Section 34 0f the Policing and Crime Act 2009 and Part 1 of the Anti-Social Behaviour etc Act 2014.