Paris Agreement

May 24th, 2022 by James Goudie QC in Environment, Highways and Leisure

In BUTLER-SLOSS v CHARITY COMMISSION (2022) EWHC 974 (Ch) the Court considered the relationship between the investment powers and duties of charitable trustees and the charitable purposes of the particular charity. Policies were ruled lawful that would exclude, so far as possible, investments that were not aligned with the goals of the Paris Agreement on Climate Change.

 

Overlapping Regulatory Regimes

May 24th, 2022 by James Goudie QC in Planning and Environmental

In R (Vanbrugh Court Residents Association) v London Borough of Lambeth (2022) EWHC 1207 (Admin) a judicial review challenge to a grant of planning permission fails. The permission was for a roof level extension to a four storey block of flats so as to provide sixteen additional residential units and five external lifts. Thornton J. summarises the legal frameworks on material considerations (paras 18-22), overlapping regulatory regimes (para 23), duty of sufficient inquiry (para 24), the Court’s review of Planning Officer Reports (para 25), and interpretation of planning policy (para 26).  A local planning authority is entitled to place reliance on the effective operation of other regulatory regimes, but must assess them sufficiently so as to be able to satisfy itself that the other regulatory regime is capable of regulating the relevant issues. The existence of the other regulatory regime is a material planning consideration, to be weighed in the balance. Thornton J. adds (para 39) that the existence of the building control regime was a material planning consideration, to be weighed in the balance. It was open to the Council to place reliance upon the effective operation of the regime in determining the planning application, provided it satisfied itself that the building control regime was capable of regulating the relevant issues.

 

Judicial Review and Courts Act 2022

May 23rd, 2022 by James Goudie QC in Judicial Control, Liability and Litigation

Part 1 of the Judicial Review and Courts Act 2022 relates to Judicial Review. It consists of two Sections.  Section 1 relates to quashing orders.  Section 2 excludes review of Upper Tribunal permission to appeal decisions.  Section 1(1) provides that a quashing order may include provision (a) for the quashing not to take effect until a date specified in the order, or (b) removing or limiting any retrospective effect of the quashing.  In deciding whether to exercise a power in subsection (1) the Court must have regard to six specified matters.

 

Elections Act

May 23rd, 2022 by James Goudie QC in Elections and Bylaws

The Elections Act 2022 has 7 Parts and 12 Schedules. Part 1 relates to administration and conduct of elections.  It includes provisions on voter identification, postal and proxy voting, undue influence, assistance with voting for persons with disabilities.  Part 2 relates to overseas electors and EU citizens, Part 3 to the Electoral Commission, Part 4 to regulation of expenditure, Part 5 to disqualification, and Part 6 on information to be included with electronic material. Part 7 is General.

 

Severance Payments

May 18th, 2022 by James Goudie QC in Best Value

The Department for Levelling Up etc published Statutory Guidance on 12 May 2022 on the making and disclosure of “Special Severance Payments” by local authorities in England. The Guidance is expressed to be “part of the best value regime”, is is issued under Section 26 of the Local Government Act 1999, and regard must be had to it pursuant to Section 3 of that Act.

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Subsidy Control

May 10th, 2022 by James Goudie QC in Capital Finance and Companies

Public funding/support given in the UK since 1 January 2021 has no longer been subject to EU State Aid Law. Compliance has since then been required with the Trade and Co-Operation Agreement between the UK and the EU (the TCA), incorporated into domestic law by Section 29 of the EU (Future Relationships) Act 2020.  Now the Subsidy Control Act 2022 (the Act) has been enacted, and Regulations are to be made, and Guidance provided thereunder, including with respect to “Subsidies of Particular Interest” and “Subsidies of Interest”, under Section 11 of the Act. Main purposes of the Act are to provide detail on the implementation of the TCA and to define “subsidy”.

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Homelessness – R (Elkundi) v Birmingham City Council and R (Imam) v Croydon LBC

May 9th, 2022 by James Goudie QC in Housing

In joined cases (2022) EWCA Civ 601, R (Elkundi) v Birmingham City Council and R (Imam) v Croydon LBC the principal issue in the Birmingham case was the nature of the duty owed by local authorities (LHAs to homeless persons, under Section 193(2) of the Housing Act 1966 (the 1966 Act), which provides that a LHA shall secure that accommodation is available for the applicant; and the sole issue in the second case concerned the circumstances in which a Court may, in the exercise of its discretion refuse a mandatory order to enforce a duty owed under Section 193(2).

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Judicial Review of Policies

May 4th, 2022 by James Goudie QC in Judicial Control, Liability and Litigation

R (All the Citizens) v SoS (2022) EWHC 960 (Admin), a Divisional Court is concerned with whether there is a legal duty, enforceable by judicial review, to create and maintain records so that they are available for posterity, and whether policies are enforceable as a matter of public law.

At para 17, the Court addressed a procedural question. They said, at para 17 (emphasis added):-

“It should not be left to parties (or, for that matter, the court) to have to infer, from omissions in skeleton arguments, what grounds of claim have been abandoned. If a party no longer pursues a ground of claim, that ought to be made clear to the court and to the other parties. To do otherwise is inconsistent with the obligations to:

(1)     help the court to further the overriding objective (which includes identifying the issues at an early stage): see CPR 1.3 and 1.4(2)(b); Read more »

 

Irrationality

April 28th, 2022 by James Goudie QC in Human Rights and Public Sector Equality Duty

In Gardner v SoS for Health and Social Care (2022) EWHC 967 (Admin) a Divisional Court dismisses claims under the Human Rights Act, but upholds common claims in respect of documents that set out an “irrational” policy in “failing” to advise that where a Covid asymptomatic patient was admitted to a Care Home, he or she should, as far as practicable, be kept apart from other residents for 14 days. At para 139 the Court stated that it cannot be said, as a general proposition, that the adjudication of past alleged breaches of duty which have now been repeated is always academic or a hypothetical exercise in the context of judicial review.

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Voter Identification

April 27th, 2022 by James Goudie QC in Elections and Bylaws

The appeal in R (Coughlan) v Minister for the Cabinet Office (2022) UKSC 11 concerned a challenge brought by Mr Coughlan to orders made by the Minister for the Cabinet Office in respect of Braintree District Council and nine other local authorities (“the Pilot Orders”). These Pilot Orders authorised schemes to temporarily change the rules set out in secondary legislation governing local elections. These schemes, which were implemented in ten local authority areas in respect of the local government elections in May 2019, each introduced a new requirement for some form of voter identification for those local elections.

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