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.
Read more »

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”.

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.

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.

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.

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.

Read more »

On ECHR Art 10, freedom of speech and expression, and the approach to limitations thereupon, see Divisional Court in R ( ANPO TVN ) v OFCOM (2020) EWHC 689 (Admin), at paras 41-63.

In Re Al M (Reporting Restrictions) (2020) EWHC 702 (Fam), concerned with an application for anonymity made by a witness who gave evidence during the fact finding stage of proceedings concerning the welfare of two children, the President declined to resolve what he described as an apparent conflict of first instance authorities on the question whether it is appropriate to strike any balance with ECHR Art 10 rights when absolute Art 2 or Art 3 rights are engaged.

In R (SXM) v Disclosure and barring Service (2020) EWHC 624 (Admin) (DC) the Court, at paras 81-85, addressed the scope of positive obligations under ECHR Article 8. At para 84, the Court confirmed that there may be “ a positive obligation to provide information concerning health risks to which a person may have been exposed.”

Read more »