In these post-GPOC days, now in Wales as well as England, source of vires issues tend to loom less large, as the localism legislation intends, but questions still crop up as to what may be authorised by the general power in Section 111 of the Local Government Act 1972, in conjunction with some other power. In R ( Ball ) v Hinckley & Bosworth BC (2023) EWHC 1922 ( Admin ) at para 73 a reminder : “ That section has a wide ambit but its scope is not unlimited. “ Where there are provisions expressly defining the way in which a local authority’s particular powers are to be exercised then Section 111 does NOT operate to enable the exercise of those powers in a different way : Sutton LBC v Morgan Grenfell. Similarly, Section 111 CANNOT be used as an “ escape route “ to act in a way that is inconsistent with other statutory provisions “Credit Suisse v Allerdale BC.
PRIVATE-HIRE VEHICLES
July 31st, 2023 by James Goudie KC in Environment, Highways and LeisureIn Uber Brittania Ltd v Sefton MBC (2023) EWHC 1975 ( JB ) the Court grants a declaration that in order to operate lawfully under the Local Government ( Miscellaneous Provisions) Act 1976 a licensed operator who accepts a booking from a passenger is required to enter as principal into a contractual obligation with the passenger to provide the journey which is the subject of the booking.
DATA PROTECTION
July 31st, 2023 by James Goudie KC in Non Judicial ControlArticle 6 of the GDPR states that processing of data shall be lawful ONLY IF AND TO THE EXTENT that at least one of 6 situations applies. These include when processing is NECESSARY for the performance of a task carried out in the PUBLIC INTEREST or in the exercise of official authority vested in the controller. In Case C-252/21, the META case, the CJEU Grand Chamber says at paras 108-112 inclusive that this means that the legitimate data protection issues pursued must not be reasonably capable of being achieved just as effectively by other means less restrictive of the rights and freedom of data subjects. A balance then requires to be struck. Particular attention must be paid when the data subject is a child.
EMISSIONS
July 28th, 2023 by James Goudie KC in Environment, Highways and LeisureIn R ( Hillingdon LBC ) v Mayor of London ( 2023 ) EWHC 1972 ( Admin ) Swift J dismisses all 3 grounds of challenge to the Mayor’s decision under the Greater London Authority Act 1999 to confirm the Greater London Low Emission Zone Charging Order, expanding, with effect from 29 August 2023, the London Ultra Low Emission Zone road charging area ( the ULEZ ).
The first ground was whether it was lawful for the Mayor to extend the ULEZ by amending the existing vehicle charging scheme and whether the 2022 Order was made consistently with all obligations arising under the 1999 Act ; paras 3-24 inc.
The second ground was whether there was sufficient and sufficiently clear information provided for the purposes of the consultation exercise: paras 25-37 inc.
The third ground was whether the Mayor’s decision was lawful on the grant payment to meet the cost of the scrappage scheme : paras 38-46 inc.
INTENTIONAL HOMELESSNESS
July 28th, 2023 by James Goudie KC in HousingHodge v Folkestone & Hythe District Council (2023) EWCA Civ 896 reaffirms that (1) whether the place which an applicant happens, or happened, to occupy is, or was, “accommodation” for the purposes of Section 191(1) of the Housing Act 1996 is a question of fact for the local housing authority, subject to Wednesbury, and (2) whether it is reasonable for an applicant to continue to occupy temporary accommodation is also a question of fact for the authority, subject to Wednesbury.
PROCUREMENT DAMAGES
July 28th, 2023 by James Goudie KC in Judicial Control, Liability and LitigationPCR 2015 confer a cause of action for damages only on commercial undertakings that had sought to obtain for themselves a relevant public contract. No right to bring proceedings is conferred on other commercial operators such as sub-contractors, or legal entities further removed, such as sub-sub contractors or related group companies. So held in the National Lottery challenge, IGT v Gambling Commission (2023) EWHC 1961 (TCC).
PROPORTIONALITY
July 21st, 2023 by James Goudie KC in Human Rights and Public Sector Equality DutyDALSTON PROJECTS LTD V SoS for TRANSPORT ( 2023 ) EWHC 1885 ( Admin ) considered proportionality in the context of interference with property rights from para 78. A proportionality challenge is ultimately a matter for the Court to determine and to do so with reference to all the information before it. That involves considering the substance of the decision, not the process of its making. Moreover, in coming to a judgment on proportionality, a court is not limited to assessing the decision-maker’s process, thinking or assessment at the time the decisions were made but can consider the matter in more general terms. However, although the Court itself determines proportionality objectively on the basis of its own assessment, a margin of discretion will be afforded to the decision-maker, to the extent that it has itself considered the relevant issues at the time of the challenged decision.
HUMAN RIGHTS ASSESSMENTS
July 20th, 2023 by James Goudie KC in Human Rights and Public Sector Equality DutyIn R ( DK ) v LONDON BOROUGH OF CROYDON ( 2023 ) EWHC 1833 ( Admin ) the claimant came came to the Uk and claimed asylum as an unaccompanied child. The Council duly accommodated and looked after him as a child in need. However, when he reached 21 and his asylum claim had been rejected the Council refused to support him any further. They relied upon Schedule 3 to NIAA 2002. He claimed that the Council should have carried out a human rights assessment.
Sir Ross Cranston ruled at paras 57-61 inc that what a local authority is required to do is to consider a request for the exercise of a power, or the performance of a duty, when support is requested by a person who but for NIAA Schedule 3 would be entitled to support. In applying the Schedule 3 prohibition the authority must consider that this does not breach ECHR rights. That may or may not involve a human rights assessment. A blanket refusal will not do.
Duty of Candour
July 19th, 2023 by James Goudie KC in Judicial Control, Liability and LitigationIn R ( Police Superintendents” Association ) v Police Remuneration Review Body ( 2023 ) EWHC. 1838 ( Admin ) Fordham J sets out 10 Principles governing the duty of candid disclosure in public law proceedings.
ECHR ARTICLE 6
July 19th, 2023 by James Goudie KC in Human Rights and Public Sector Equality DutyIn JONES v BIRMINGHAM CITY COUNCIL (2023) UKSC 27 a 7 Justice Supreme Court holds (1) that Article 6 does not require the criminal standard of proof to be satisfied in respect of proof that a person has engaged in or has encouraged or assisted gang-related violence or gang-related drug dealing activity or proof that a person has engaged or threatens to engage in anti-social behaviour, and (2) that Parliament has devised statutory schemes which conform with the requirements of a fair hearing under Article 6 under Section 34 0f the Policing and Crime Act 2009 and Part 1 of the Anti-Social Behaviour etc Act 2014.