ECHR Articles 6, 14 and 1/1/PSED

January 20th, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (BMA) v SoS for Health and Social Care (2020) EWHC 64 (Admin), Andrews J held, para 151, that the BMA was entitled to declaratory relief and a quashing order in respect of 2019 Pension Regulations which purported to enable the SoS to make a suspension decision in respect of pension benefits after criminal charge, but before any conviction. The BMA established to the Judge’s satisfaction that (1) the power to suspend pension benefits in the form in which it was introduced by the 2019 Regulations was a breach of ECHR Article 14, in conjunction with Article 1 of Protocol 1; (2) that this was compounded by an absence of appropriate procedural safeguards, as required both by ECHR Article 6 and by the common law principles of natural justice; (3) that although the Article 6 deficiencies might have been capable of cure had they stood alone, the Court was unable to use the wide powers, given to the Court under Section 3(1) of the Human Rights Act 1998, to interpret the legislation in a manner which would render it compatible with the ECHR; and (4) the SoS also failed to comply with the PSED, under Section 149 of the Equality Act 2010, when making the 2019 Regulations, which was an entirely independent ground upon which the decision to introduce the power was unlawful.

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Proportionality

November 27th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

B (Secure Accommodation Order) (2019) EWCA Civ 2025 is an appeal by a local authority against the refusal of its application for a secure accommodation order under Section 25 of the Children Act 1989. The appeal raised important and overlapping questions on the interpretation of Section 25, including whether, when considering such an application, the Court is obliged to carry out an evaluation of “proportionality”, pursuant to Articles 5 and 8 of the ECHR. Baker LJ addressed the HRA and proportionality from paragraph 74.  On the meaning of “deprivation of liberty” in Article 5 he referred to Guzzardi v Italy (1980) 3EHRR 332 at paragraphs 92-93 and  P v Cheshire West and Cheshire Council (2014) UKSC 19, to the “degree and intensity of control” that amounts to “a deprivation of liberty”, and to in practice an Order under Section 25 involving a “deprivation of liberty” under Article 5, and an interference with the child’s right to respect for private and family life under Article 8.

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Discrimination

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

In cases under Article 14 of the ECHR, in conjunction with Article 1/1, J.D. and A v UK, concerned with benefit reductions, the Strasbourg Court, on 24 October 2019, stated general principles, including the following:-

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PSED

October 8th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In SIMONE v CHANCELLOR OF THE EXCHEQUER (2019) EWHC 2689 (Admin) Lewis J said, at para 63, with respect to Section 149 of the Equality Act 2010, that it is helpful to identify the specific function(s) that the public authority is exercising. This is because it is in the exercise of its functions that a public authority is under a duty to have due regard to the specified matters. Lewis J added that the question of what regard is due will be influenced by a number of factors, including, but not limited to (1) the nature of the decision being taken, (2) the stage of the decision-making process that has been reached, and (3) the particular characteristics of the function being exercised.

 

PSED

October 2nd, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (Parkin) v SoS for Work and Pensions (2019) EWHC 2356 (Admin) Elisabeth Laing J at paragraph 88 identified four key features relevant to that case (in relation to universal credit) of the many decisions about the scope of Section 149 of the Equality Act 2010: (i) Section 149 does not require a substantive result; (ii) it implies a duty to make “reasonable inquiry” into the obvious equal impacts of a decision; (iii) it requires a decision-maker to understand the obvious equality impacts of a decision before adopting a policy; and (iv) complying with it is not a box-ticking exercise.

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ECHR Article A1P1

August 27th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

When do contractual rights and expectations amount to A1P1 possessions? When does goodwill qualify for A1P1 Protection? These were the linked substantive issues in SOLARIA ENERGY UK v DBEIS (2019) EWHC 2188 (TCC).

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PSED

August 1st, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

There is a failure to have due regard to the PSED before making a decision.  Must that decision be quashed?  No, says the Court of Appeal in Forward v Aldwyck Housing Group Ltd (2019) EWCA Civ 1334, in the context of a decision by a social housing association, exercising public functions, to bring possession proceedings against a physically disabled tenant, where it was highly likely that the decision would not have been substantially different if the breach had not occurred.

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PSED

August 1st, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

There is a failure to have due regard to the PSED before making a decision.  Must that decision be quashed?  No, says the Court of Appeal in Forward v Aldwyck Housing Group Ltd (2019) EWCA Civ 1334, in the context of a decision by a social housing association, exercising public functions, to bring possession proceedings against a physically disabled tenant, where it was highly likely that the decision would not have been substantially different if the breach had not occurred.

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Discrimination

July 23rd, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In R (Drexler) v Leicestershire County Council (2019) EWHC 1934 (Admin) Swift J restated the following principles:-

(1) The extent of the ambit of an ECHR right is a matter of assessment: paragraph 24;

(2) For an Article 14 discrimination claim to arise there is no requirement for the substantive right to be infringed: ibid;

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PSED

June 10th, 2019 by James Goudie QC in Human Rights and Public Sector Equality Duty

In London and Quadrant Housing Trust v Patrick (2019) EWHC 1263 (QB) Turner J at paragraph 42 listed the factors which are likely, at least in many instances, to be the most relevant to be considered in the context of possession cases:-

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