The unanimous Supreme Court Judgment on 8 February 2017 (2017) UKSC 8 on the Northern Ireland application for judicial review by Denise Brewster, allowing her appeal from a majority Judgment of the Northern Ireland Court of Appeal (2013) NICA 54 concerned a requirement in the Northern Ireland Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 (the “2009 Regulations”) that unmarried co-habiting partners be nominated by their pension scheme member partner in order to be eligible for a survivor’s pension. There is no similar nomination requirement for married or civil partner survivors. The Northern Ireland High Court held that the requirement of nomination of a cohabiting partner in the 2009 Regulations was incompatible with Article 14 of the European Convention on Human Rights (which prohibits discrimination) read together with Article 1 Protocol 1 (peaceful enjoyment of possessions) (“A1P1”). The Court of Appeal allowed the respondents’ appeal, finding that the nomination requirement was neither unjustified nor disproportionate. In the meantime, prompted by the judgment of the High Court, the equivalent regulations in England and Wales and in Scotland were amended to remove the nomination requirement in those schemes. When the appellant became aware of these changes, she applied for her appeal to be re-opened. Read more »
Injunction enforcement
February 10th, 2017 by James Goudie KC in Judicial Control, Liability and LitigationIn Wolverhampton, Dudley, Sandwell and Walsall MBCs v Green and Charlesworth (2017) EWHC 96 (QB) the Councils had obtained injunctions against persons unknown prohibiting car cruising in a specified area and the issue before the High Court was sentence for breach. Suspended sentences of imprisonment were imposed on two offenders who had breached the injunction. They had been part of a convoy of nine cars that had deliberately flouted the injunction and caused nuisance and disruption to local residents. An aggravating feature was the uploading of a video to social media inviting others to join them.
Costs
February 7th, 2017 by James Goudie KC in StandardsIn Taylor v Honiton Town Council [2017] EWHC 101 (Admin) the Court was required to determine costs following an application by Councillor Taylor for judicial review of a decision by the Council to impose sanctions upon him for a breach of its Code of Conduct. The Council offered to abandon the sanctions and pay his costs shortly after the issue of proceedings. The Court ordered that his costs incurred before the date of the offer should be paid to him by the Council, but that the Council’s costs incurred thereafter should be paid to the Council by him. He should have accepted the offer. He achieved nothing of value after rejecting it. He did no better in Court. His pursuit of the proceedings was not characterised by a genuine attempt to resolve a genuine grievance. Edis J said: Read more »
Environment, Highways and Leisure
February 3rd, 2017 by James Goudie KC in Environment, Highways and LeisureIn Crawley v Barnsley MBC (2017) EWCA Civ 36 the majority of the Court of Appeal upheld that a local authority’s system, whereby reports of potentially serious defects in minor roads reported by members of the public on a Friday afternoon or over the weekend would not be dealt with until the following Monday, was inadequate. Although reduced staffing levels over a weekend was reasonable, there had to be some means of responding quickly to complaints from members of the public of serious and dangerous defects in the road. Read more »
Time Limits
February 2nd, 2017 by James Goudie KC in Judicial Control, Liability and LitigationIn Hillingdon LBC v SoS for Transport [2017] EWHC 121 (Admin) Cranston J has held that on a proper construction of Section 13(1) of the Planning Act 2008, a legal challenge relating to a National Policy Statement could be brought only in the six-week period after the statement was designated or published. The Court did not have jurisdiction to hear the claimants’ application for judicial review of a decision of the Secretary of State for Transport to select for inclusion in a draft National Policy Statement a proposal for a third runway at Heathrow Airport. Read more »
Assessment of Evidence
February 2nd, 2017 by James Goudie KC in Judicial Control, Liability and LitigationIn Southwark Council v Various Lessees of the St Saviour’s Estate (2017) UKUT 10 (LC) the Council appealed against a decision of the First-tier Tribunal preventing it from recovering the whole amount it had expended on works to residential flats through the service charge payable by the occupants. The Council submitted that the FTT had not applied the correct test on disrepair, and erred in finding that there was little evidence of the condition of the communal fire doors and in allowing an arbitrary figure of 50% without giving the parties the opportunity to comment. The Upper Tribunal dismissed the appeal. The FTT had been unable to accept the Council’s evidence on the communal fire doors and was not satisfied with the lessees’ evidence. It had been entitled to take that view of the evidence, to accept the fire risk assessments, and to take a broad-brush approach to the appropriate allowable figure. The 50% figure was not arbitrary, but resulted from the FTT’s evaluation of the available evidence. Had the FTT used its own knowledge or expertise to challenge the Council’s methodology or figures during the course of the proceedings, it would have been appropriate to give the parties an opportunity to comment. However, after the close of the evidence, it had simply evaluated the evidence and reached a decision. It had been entitled to take a robust approach and to arrive at a figure based on the evidence together with its own knowledge and expertise. It would only be in exceptional cases that, during the course of its deliberations, a Tribunal would ventilate what it was proposing before reaching a final determination. Read more »
Combined Authority Mayoral Elections
February 2nd, 2017 by James Goudie KC in Decision making and ContractsThe Combined Authorities (Mayoral Elections) Order 2017, SI 2017/67, provides for the conduct of a Combined Authority Mayoral Election. The Order is modelled on the Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007. An election is to be conducted in accordance with the Rules set out in Schedule 1 to the Order.
Prisoner Rehabilitation
February 1st, 2017 by admin in Human Rights and Public Sector Equality DutyIn Ansari v Aberdeen City Council (2017) CSIH 5 the Inner House of the Court of Session held that the Council owed no relevant duty to Mr Ansari under ECHR 5 to provide a reasonable opportunity for him to rehabilitate himself, in accordance with R (Haney) v Secretary of State for Justice (2015) AC 1344. He claimed that both Scottish Ministers and the Council were in breach of that duty. The issue was whether a relevant case had been made against the Council. He argued that all public authorities were bound to act compatibly with ECHR rights, and that for the rights he claimed to be effective, both respondents should be subject to the duty to provide him with a reasonable opportunity for rehabilitation, having regard to the various statutory responsibilities on the Council. There was a risk of a gap he argued between the obligations arising in statute and the prisoner making progress in the phase of being partly in prison and partly outside prison.
Delivering the opinion of the Court, Lord Bracadale, who sat with Lady Paton and Lord Malcolm, said, at paragraph 26, that the duty in question was imposed on the State. It had the power to detain the prisoner relying on Article 5(1)(a), and implicitly also the duty to provide the prisoner with a reasonable opportunity to rehabilitate himself and to demonstrate that he no longer presented an unacceptable danger to the public. The Scottish Ministers accepted that the duty is incumbent on them.
“In our view”, he continued, at paragraph 27, “the Lord Ordinary was correct to hold that the local authority is in a different position. It is not responsible for the detention or release of the prisoner. It is not required to justify the continued detention for public protection reasons. The role of the local authority is to provide assistance in certain areas of the rehabilitation process before and after release. In carrying out its role in relation to rehabilitation of a prisoner the local authority operated on behalf of the Scottish ministers”. Since the Ministers accepted the duty on them, “no question of a duty gap arises”.
The fact that the Council was a public authority “does not create a freestanding duty to provide the petitioner with reasonable opportunities for rehabilitation in circumstances in which the [council is] not responsible for his imprisonment or release… The local authority having no responsibility for the decision to continue the detention of the petitioner, there is no basis for reading into article 5 an implied duty incumbent on it to facilitate his release”: paragraph 29.
Elected Mayors
February 1st, 2017 by James Goudie KC in Decision making and ContractsThe Combined Authorities (Mayors) (Filling of Vacancies) Order 2017, SI 2017/69, provides (Article 3) for the filling of vacancies in the Office of Elected Mayor of a Combined Authority, (Article 4) for the date on which the vacancy occurs, (Article 5) for giving public notice of a vacancy, (Article 6) for by-elections, and (Article 7) for the term of office of the person filling the vacancy.
Combined Authorities
January 31st, 2017 by James Goudie KC in Decision making and ContractsThe Combined Authorities (Overview and Scrutiny Committees, Access to Information and Audit Committees) Order 2017 (SI 2017/68) makes provision for the membership and proceedings of Overview and Scrutiny Committees, and Audit Committees, of Combined Authorities. Part 1 makes general provision for overview and scrutiny provisions of a Combined Authority. Article 3 makes provision for the membership of the Overview and Scrutiny Committee. Article 4 makes provision for the appointment of members to an Overview and Scrutiny Committee and to a sub-committee of such a committee. Article 5 makes provision for the persons who may be Chair of an Overview and Scrutiny Committee.