Modern Slavery

December 3rd, 2021 by James Goudie QC in Human Rights and Public Sector Equality Duty

Art 4 of the ECHR provides that no one shall be held in slavery or servitude. Positive duties are implicit in Art 4: (1) a systems duty, a general city to implement measures to combat trafficking; (2) an investigation duty, to investigate situations of potential trafficking; and (3) a protection duty, or operational duty, to take steps to protect individual victims of trafficking. The protection duty is engaged when state authorities are aware of circumstances giving rise to a credible suspicion that an identified individual has been, or was at real and immediate risk of being, trafficked or exploited. See R (H) v Swindon BC (EWCA) Civ 1836.



December 1st, 2021 by James Goudie QC in Decision making and Contracts

There may be a general implied duty upon an employer to act procedurally fairly in the context of disciplinary processes. However, fairness does not impose a general disclosure obligation. See Burn v Alder Hey NHS Trust (2021) EWCA Civ 1791.



November 26th, 2021 by James Goudie QC in Environment, Highways and Leisure

The statutory objections procedure before the making of a Permanent Order in the same terms as an ETO does not operate as a bat to the local authority revoking the ETO. So held in R ( Keyhole Bridge User Safety Group ) v Bournemouth, Christchurch & Poole Council (2021) EWHC 3082 ( Admin ).



November 26th, 2021 by James Goudie QC in Housing

The evidence relating to intentional homelessness is evidence bearing on the reason why the applicant is homeless. The local authority’s investigation duties relate to homelessness, not unemployment. An appreciation of local job prospects is relevant only insofar as it explains why it is that the applicant is homeless. It is not necessarily relevant to the applicant’s homelessness. There may, or may not, be a sufficient linkage between them. The duty to investigate is to make necessary enquiries. It is not a duty to make all possible enquiries. So held in Ciftci v Haringey LBC (2021) EWCA Civ 1772.



November 26th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

Whether or not to grant an injunction in a public law case involves the exercise of a discretion which takes all relevant matters into account. These include the strength of the case advanced by the party seeking relief. That however, is not the application of a rigid test. Other important factors to be taken into account are (1) the particular decision under challenge, (2) the interests of the public in general that are involved, and (3) the broader legal framework. See para 52 in R ( S & S ) v HMRC (2021) EWHC 3174 ( Admin ).


Use of Private Rented Sector

November 12th, 2021 by James Goudie QC in Housing

Hajjaj v Westminster and Akhter v Waltham Forest (2021) EWCA Civ 1688 address the use by local housing authorities of the private rented sector in accordance with Sections 148 and 149 of the Localism Act 2011 to bring to an end the main homelessness duty under Section 193(2) in Part 7 of the Housing Act 1996. The main question was in what circumstances accommodation should be regarded as not suitable to form the subject of a valid private rented sector offer (PRSO). This is governed by Article 3 of the Homelessness (Suitability of Accommodation) (England) Order 2012. Accommodation shall not be regarded as suitable where one or more of ten listed conditions applies.

Bean LJ says, at para 70, that suitability is a “multi-faceted concept”. It includes size, location, accessibility, if the applicant is elderly or disabled, as well as the physical condition and other matters. The authority must be satisfied that none of the ten bars to suitability established by Article 3 applies. They must be “satisfied on the basis of evidence rather than assumptions”. He adds, at para 72, that satisfactory hearsay evidence may be enough.


Derivative Contracts

October 28th, 2021 by James Goudie QC in Decision making and Contracts

A transaction will not be speculative, and beyond a local authority’s capacity on that account, merely because the value or final outcome is uncertain. A decision to borrow at a floating rate instead of a fixed rate, or vice versa, or to enter into a derivative contract, by way of hedging, is capable of being lawful. See Deutsche Bank v Comune di Busto Arsizio (2021)EWHC 2706 (Comm) at paras 1-3, 84-103, especially 100, 294 and 306.


Care Workers

October 25th, 2021 by James Goudie QC in Social Care

The Court of Appeal in SoS for Justice v A Local Authority (2021) EWCA Civ 1527 addresses the question whether care workers are in peril of committing a criminal offence under Section 39 of the Sexual Offences Act 2003 (care workers: causing or inciting sexual activity) when they make the practical arrangements for a 27 year old man to visit a sex worker in circumstances where he has capacity within the meaning of the Mental Capacity Act 2005 to consent to sexual relations and to decide to have contact with a sex worker but not make the arrangements himself. The answer given is that the care workers risk committing the offence.

The Court of Appeal also says that it’s interpretation of Section 39 does not infringe the ECHR. The Court of Protection cannot endorse an act that would be unlawful. The motive of the care workers is irrelevant.

The situation is entirely different from situations such as a care worker arranging private time for a long married couple when it is known that this will likely include sexual activity.


Defective Order

October 21st, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

The appeal in R ( Majera) v SSHD (2021) UKSC 46 raised a question of constitutional importance: whether it is possible to act lawfully in a manner which is inconsistent with an Order of a Judge which is defective, without first applying for, and obtaining, the variation or setting aside of that Order. The answer, reversing the Court of Appeal, is: No.


The Test of Irrationality

October 13th, 2021 by James Goudie QC in Judicial Control, Liability and Litigation

In Pantellerisco v SoS for Work & Pensions (2021) EWCA Civ 1454 Underhill LJ for the Court of Appeal says, at para 56, that the “degree of intensity” with which the Court will review the reasonableness of a public law act or decision “ varies “according to the “nature” of the decision in question, and, at para 57, that in the context of governmental decisions in the field of “social and economic policy” the administrative law test of unreasonableness is generally applied with “considerable care and caution.” The approach of the Courts is in general to accord a “high level of respect” to the judgment of public authorities in that field. This respects the “separation of powers” between the judiciary and the elected branches of government.