Bilingual Legislation

December 23rd, 2020 by James Goudie QC in Local Authority Powers

Welsh language legislation is considered in R ( Driver) v Rhondda Cynon Taff CBC (2020) ECCA Civ 1759, at paragraphs 11/12. The best approach to the interpretation where different language texts have different meanings, and where it is not possible to reach an interpretation consistent with the literal meaning of both language versions, is to discern the legislative intention by reference to the purposes or objects of the legislation as they appear from the texts, rather than by searching for a shared meaning. The Court should apply normal principles of statutory interpretation to its analysis of the meaning of both texts equally.

 

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).

 

ETOs

December 15th, 2020 by James Goudie QC in Environment, Highways and Leisure

The validity of a temporary Experimental Traffic Order, restricting access through a London street to zero omission vehicles, was upheld Tomkins v City of London (2020) EWHC 3357 (Admin). It was found that there had been no duty to carry out a non-statutory consultation. There was no legitimate expectation to that effect. However, declarations were granted in relation to failings to comply with procedural requirements and statutory requirements in relation to statement of reasons.

 

Misconduct

December 4th, 2020 by James Goudie QC in Standards

A 118 page Law Commission Report, No. 397, with 22 Recommendations, recommends substantive and procedural reform of the common law offence of misconduct in public office, which operates in parallel with the tort of misfeasance in public office. The Report proposes two replacement offences, not to be applicable to the provision of education and health services. They are “ corruption in public office”, with a test of what a reasonable person will think is “ seriously improper”; and “ breach of duty in public office”, to prevent death or serious injury. The Report also recommends a statutory list, to be capable of amendment by SI, of positions that constitute “ public office”, to which a functional test would be applied.

 

Liability for Accident in Public Park

December 4th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Lewis v Wandsworth LBC (2020) EWHC 3205 (QB) it is held that the local authority had been under no legal duty to warn those using a path in a public park that a game of cricket with a hard ball was in progress and that the boundary of the cricket pitch was alongside the path. Bolton v Stone (1951) AC 850 was considered. Reasonable foreseeability of an accident is not sufficient to found liability. The Court has to consider not only the potential seriousness of an accident but also the chances of an accident happening and the measures which could be taken to minimise or avoid an accident.

 

 

 

Consultation

December 3rd, 2020 by James Goudie QC in Decision making and Contracts

In R ( MP ) v SoS for Health and Social Care (2020) EWCA Civ 1634, dismissing an appeal from Lewis J, as he then was, the Court of Appeal observed :-

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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.

 

Judicial Review

December 1st, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

There is increasing concern about the need for appropriate procedural rigour in judicial review cases. In R (Dolan) v SoS for Health (2020) EWCA Civ 1605 the Court of Appeal says, at para 117 that procedural rigour is important for justice to be done and for fairness to all concerned.

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LHAs Working with RSLs

December 1st, 2020 by James Goudie QC in Housing

WPPN 02/20 provides Welsh Government guidance on procurement law for Local Housing Authorities working with Registered Social Landlords to deliver Housing Revenue Account development programmes, with particular reference to the Directive 2014/24/EU and PCR 2015 Regulation 12(7) exemption for cooperation between contracting authorities with respect to public services.

 

Coronavirus

December 1st, 2020 by James Goudie QC in Local Authority Powers

SI 2020/1374 imposes a framework of 3 Tiers of restrictions, with different tiers applying in different areas. SI 2020/1375, in force for 6 months, amongst other matters introduces local authority enforcement powers by means of a Coronavirus Improvement Notice (Regulation 3), a Coronavirus Restriction Notice (Regulation 4) and a Coronavirus Immediate Restriction Notice (Regulation 5), which can be issued to any business whose premises or practices breach specified requirements of named Coronavirus Regulations, and which are subject to appeal (Regulation 9).