ECHR Discrimination

January 26th, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

The ambit of an ECHR right is wider than its “ scope”. Treatment will fall within “ scope “ if it potentially infringes an ECHR right. In an Article 14 discrimination case however the treatment will fall within the “ambit” of another Article provided that the treatment merely has a more than tenuous link with the core values protected by the other Article(s). This is a less exacting test. So reaffirmed by Bourne J in R (IJ) v SSHD (2020):EWHC 3487 ( Admin) at para 82.

 

PSED

December 24th, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

The PSED applies to all aspects of a local authority’s housing function. This includes decisions to commence, pursue and enforce possession proceedings. However, it is held in Taylor v Slough BC (2020) EWHC 3520 (Ch) at paras 24-26, 29-30 and 33-43, that a breach of the PSED at an early stage of individual possession proceedings is capable of being cured by subsequent full compliance.

 

ECHR Article 14

December 23rd, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

Severe disability is a “ status” for Article 14 purposes. They can be compared to disabled people for discrimination purposes. So held in R (SH) v Norfolk County Council (2020) EWHC 3436 ( Admin).

 

PSED

December 2nd, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

The nature of the PSED duty to have regard is informed by the particular function being exercised. See ZK v Redbridge LBC (2020);EWCA Civ 1597 at paras 82-84. In any case where a public authority’s functions under legislation are expressly directed at the needs of a protected group it may be/unnecessary to refer to the PSED, or to infer from an omission to do so a failure to have regard to that duty.

 

PSED

August 11th, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R ( Bridges) v South Wales Police (2020) EWCA Civ 1058 the Court of Appeal said at para 176 that, albeit the PSED is a process duty, not an outcome duty, that does not diminish its importance. The Court observed that public law is often concerned with the process by which a decision is taken, for two reasons : (1) good processes are more likely to lead to better informed, and therefore better, decisions; (2) whatever the outcome, good processes help to make public authorities accountable to the public.
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Socio-Economic Disadvantages

July 17th, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

It is now over 10 years since the enactment of the Equality Act 2010. Yet the UK Government has not elected to commence Part 1 of the Act. Part 1 relates to socio-economic inequalities. It consists of Sections 1-3 inclusive. It has been commenced in Scotland. The Welsh Government has now announced that it will come into force in Wales on 31 March 2021. The announcement is accompanied by non-statutory Guidance, “ A More Equal Wales : Preparing for the commencement of the Socio-Economic Duty “, accompanied by a Factsheet.

The duty is a requirement on relevant bodies, which include local authorities, when taking “ strategic decisions”, to “have due regard” to the need to reduce the “ inequalities of outcome” resulting from “ socio-economic disadvantages”.

 

Compliance with the PSED

June 16th, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

Amongst the issues considered by a Divisional Court (Bean LJ and Cavanagh J) in a 55 page Judgment in Adiatu v HMT (2020) EWHC 1554 Admin was, from para 195, the scope of the PSED, including, from para 239, the question, which the Court answered in the affirmative, whether the public authority’s duty is to have regard to the equalities implications of the decision that is actually taken. The Court rules that it does not have to consider the equalities implications of other decisions that might have been taken instead : paras 242-245.

 

ECHR Article 14

April 22nd, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

On objective and reasonable justification for difference in treatment, and in particular whether, fairly balancing the severity of the effects against the importance of the objective, the impact is disproportionate, and when the “ manifestly without reasonable foundation” criterion applies to an issue of justification, see R (Joint Council for the Welfare of Immigrants) v SSHD (2020) EWCA 542, from para 112.

 

Care Home Visits

April 8th, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

In BP v Surrey County Council (2020) EWCOP 17 a care home had acted lawfully in suspending all family visits during the coronavirus pandemic. It was necessary and proportionate to derogate from ECHR Articles 5 and 8. Considering alternative means of contact and communication was imperative. An appropriate balance had been struck.

 

 

Discrimination

April 7th, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (Drexler) v Leicestershire County Council (2020) EWCA 502 the Court of Appeal has unanimously dismissed am appeal against a Judgment of Swift J dismissing an ECHR challenge to a Council Cabinet decision to amend its SEN Home to School/College Transport Policy. Swift J did not (para75) err in applying the “manifestly without reasonable foundation” test or a conventional proportionality test. The issue was as to alleged unlawful age discrimination, contrary to Article 14 of the ECHR.

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