The freedom to (1) manifest religious belief AND (2) express views relating to that belief are essential rights in a democracy and are protected by the ECHR and the Equality Act 2010. The question on manifestation is whether there is a sufficiently close or direct nexus between an individual religious beliefs and any particular expression of views. In HIGGS v FARMOR’S SCHOOL (2023) EAT 89 the President of the EAT, from paragraph 79 in the Judgment reaffirms that in considering disciplinary action against the individual it is necessary to determine whether the reason for taking the action is (1) because of, or related to, the manifestation of beliefs, which renders the action prohibited, OR (2) because the manner of the manifestation was objectionable, which may make the action permissible. The freedom to manifest belief is not absolute. It is a qualified right. It can be limited to the extent that the limitation is prescribed by law, in pursuit of a legitimate aim, and necessary in a democratic society. A proportionate balance has to be struck between an interference with fundamental rights and the legitimate interests of others.
RELIGIOUS BELIEFS
July 13th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty
CONSERVATION OF HABITATS
July 6th, 2023 by James Goudie KC in Planning and EnvironmentalThe Habitats Directive (notwithstanding Brexit) and domestic Regulations mandate that an appropriate assessment be undertaken before planning consent is given for a development. That is irrespective of what stage in the planning process has been reached according to domestic law. In C G Fry and Son Ltd v SoS for Levelling Up, etc (2023) EWHL 1622 (Admin) Sir Ross Cranston holds that application of Article 6(3) of the Directive and a broad and purposive approach to the interpretation of Regulations 63 and 70 of the Regulations requires the application of the assessment provisions to the discharge of conditions. The strict precautionary approach required for the whole development would be undermined if those provisions were limited to the initial, permission, stage of a multi-stage process.
MISUSE OF PRIVATE INFORMATION
July 6th, 2023 by James Goudie KC in Judicial Control, Liability and LitigationBEKOE v ISLINGTON LBC (2023) EWHC 1668 (KB) is concerned with a claim against the Council that succeeded for the common law tort of misuse of the claimant’s private financial information and reasonable expectation of privacy in respect of it, and breach of his rights under Articles 5, 12, 15, 23 and 82 of the GDPR, including in relation to inadequate and delayed response to a Subject Access Request, under Article 8 of ECHR, and under the Data Protection Act 2018.
On Misuse of Private Information, the Judge concluded:-
“48. There is ample authority that financial information can be categorised as “private information” for the purposes of the tort of misuse of private information … There is therefore a reasonable expectation that this kind of information would be kept private. A reasonable person with ordinary sensibilities placed in the same position as the claimant would expect that a comprehensive snapshot of their general financial information would be kept private.”
“51. In this case, the combination of financial information relating to several bank accounts and mortgage accounts including balances with the comprehensive view it gave of Mr Bekoe’s financial situation is clearly private information. In addition, from the evidence before me, it would appear that it is not only Mr Bekoe’s private information that has been compromised but also that of his son.”
“56. …I find that the defendant did misuse private information belonging to Mr Bekoe by accessing details relating to a collection of bank accounts and mortgage accounts associated with Mr Bekoe (and others) in July 2015 without lawful authority.”
On the GDPR, the Judge found that the Council had violated the claimant’s rights under Articles 5, 12 and 15 of the GDPR.
On quantum, the Judge observed:-
“65. Compensation is available in the tort of misuse of private information on a wider basis than under the GDPR. In particular, a successful claimant is entitled to damages to compensate them for the loss or diminution of the right to control the use of their private information independently of any distress caused …”
“69. I find that … the subsequent conduct of the defendant, in this case, is sufficient to trigger aggravated damages. The way that the trial and the litigation as a whole has been conducted by the defendant has revealed a lack of respect for legal requirements related to privacy and data protection. Repeated failure to disclose key information, disclosure at the final hour, two working days before the trial, and the absence of any clear evidence to support or substantiate Defence submissions relating to alleged fraud have clearly aggravated the distress caused to the claimant. To be clear, it is not the assertion of a Defence in this case which triggers aggravated damages but rather the absolute failure to evidence it along with the continued unjustified shape shifting of the basis of the defence which continued right up until Mr Cunliffe’s final submissions at trial.
70. …I find that the aggravated nature of the damages should be wrapped up in one overall figure.”
“73. In this case, taking account of the misuse of private information, the loss of the right to control the information and the level of distress caused by the GDPR breaches along with the aggravating factors, I award an overall figure of £6,000 for damages.”
LAND DISPOSAL
July 5th, 2023 by James Goudie KC in Land, Goods and ServicesIn R (Cilldara Group Holdings Ltd) v West Northamptonshire Council (2023) EWHC 1675 (Admin) the challenge by Cilldara to the Council’s discharge of its statutory duty on a land disposal generally to obtain best consideration reasonably obtainable under Section 123 of the Local Government Act 1972 (LGA 1972) failed before Steyn J, notwithstanding that Cilldara’s ultimate offer was nearly £1 million higher than the offer that was accepted from CDNL. There was a risk that Cilldara’s offer was not reliable. It was too generous to be credible. The apparent lack of attention on Cilldara’s part to the detail of the highly complex tenure of the land, the apparent failure to take any steps to investigate the ground conditions to assess the remediation required for a former landfill site, and the lack of information regarding how Cilldara intended to develop and extract value from the site, combined to give the Council rational grounds for considering that there was a high risk Cilldara was not seriously considering purchasing the land, but rather was seeking to disrupt the process to avoid CDNL doing so. The Council’s assessment that it had grounds to have much higher confidence that CDNL’s final offer was reliable and would proceed to completion, albeit that too was uncertain, was also reasonable, given CDNL’s and a Football Club’s existing interests in the Land, and CDNL’s approach to the offer process. It followed that the Council was reasonably entitled to take the view that Cilldara’s offer was not reasonably obtainable, and that CDNL’s fourth offer, which itself far exceeded the Council’s Red Book Valuation, represented the best consideration reasonably available. The Council had complied with Section 123(2) of LGA 1972.
CONCESSION CONTRACTS
July 5th, 2023 by James Goudie KC in Decision making and ContractsWhat constitutes a concession? When does a contract come within the Concession Contracts Regulations 2016 rather than the Public Contracts Regulations 2015? Why may it matter? These were issues covered in OCEAN OUTDOOR v HAMMERSMITH & FULHAM LONDON BOROUGH COUNCIL (2019) EWCA Civ 1642 and DUKES BAILIFFS v BRECKLAND COUNCIL (2023) EWHC 1569 (TCC). There are different financial thresholds. There are different procurement procedures. There are different permissible selection criteria.
In the context of a services contract, there are 5 main elements of a concession contract within the 2016 Regulations.
FIRST: the contract concluded in writing must be identified; and not excluded by the land exemption.
SECOND: this contract must be one where a contracting authority entrust to an economic operator for “pecuniary interest” the legally enforceable obligation to provide and manage services to or for the public which the authority would otherwise provide itself for its residents (or someone else).
THIRD: the consideration for the contract must consist either solely in the right to exploit the services or in that right together with payment.
FOURTH: a transfer of “operating risk” must be involved.
FIFTHLY: a real risk of potential loss must be involved.
PSED
June 29th, 2023 by James Goudie KC in Human Rights and Public Sector Equality Duty“ The PSED is primarily directed at policy decisions not at the application of policy to individual cases “ : so says the Supreme Court in R ( MAROUF ) v SSHD (2023 ) UKSC 23 at paragraph 62. The Court holds that Section 149 of the Equality Act 2010 does not require public bodies to have due regard to the need to promote the goals there listed when exercising their functions in so far as that exercise affects the lives of people living outside the UK.
COMMON LAND REGISTER
June 28th, 2023 by lawrence in Land, Goods and ServicesIn RUSHMER v CENTRAL BEDFORDSHIRE COUNCIL (2023) EWHC 1341 (Ch) the Council was responsible, under the Commons Registration Act 1965 ( the 1965 Act ), for maintaining a Common Land Register for its area. The High Court made declarations as to the reliability of a photocopy Register entry and which map was the one adopted for the Register. The Court did not have power to correct or clarify the Register, but it did have power, outside administrative law processes, to identify the Register and restore to the public record the true decision that the commons registration authority had made. This was in order to provide certainty and was not prevented by Section 10 of the 1965 Act.
MANDATORY RELIEF FROM BUSINESS RATES
June 8th, 2023 by James Goudie KC in Council Tax and RatesMERTON LONDON BOROUGH COUNCIL v NUFFIELD HEALTH (2023) UKSC 18 concerns Sections 43(5) and (6)(a) of the LOCAL GOVERNMENT FINANCE ACT 1988 and the interaction between rating law and charity law. Section 43 provides for a mandatory 80% relief from business rates when the ratepayer is a charity (or trustees for a charity) AND the hereditament is “wholly or mainly” used for “charitable purposes”. Nuffield Health is a registered charity. It has a members-only gym in the Council’s area. The decision was that Section 43(6) does NOT require the question whether the premises were used for charitable purposes to be decided by reference to the activities carried on there alone. Rather, the question was whether Nuffield Health was using the Merton Abbey gym for the pursuit of its charitable purposes, viewed in the context of its charitable activities AS A WHOLE. Applying that test Nuffield Health succeeded, EVEN IF persons of modest means were excluded from using the facilities at the Merton Abbey gym by reason of the fees charged there.
The Supreme Court addressed:-
(1) The History of the Applicable Law: paras 12-12 inc;
(2) The Principles of Charity Law relevant to the construction of Section 43(6): paras 22-32 inc;
(3) The Principles of Rating Law relevant to the construction of Section 43(6): paras 33 and 34;
(4) The Principles of Statutory Construction: paras 35-38 inc;
(5) Authorities on Section 43(6), its Predecessors and Equivalents: paras 39-44 inc;
(6) Construing 43(6): paras 45-62 inc; and
(7) The Application of Section 43(6) to the Facts: paras 63-66 inc.
The Supreme Court said in relation to House of Lords authorities on the effect of the formula now used in Section 43(6), GLASGOW CORPORATION v JOHNSTONE and OXFAM v BIRMINGHAM COUNCIL: –
“43. These authorities indicate that in order to qualify for relief under the statutory formula, the hereditament must be wholly or mainly used directly for activities which constitute the carrying out of the charitable purposes of the charity or, by a modest extension, for activities which directly facilitate or are wholly ancillary to the carrying out of those purposes.
44. …in our judgment the activities carried on by Nuffield Health at Merton Abbey gym were directly for the fulfilment of its charitable purpose of promoting health through exercise, within the core sense of the term, without need to rely on the extended sense laid down in the Glasgow Corpn and Oxfam cases…”
“53. …a charity cannot have non-charitable purposes, but can carry on other intra vires incidental activities, such as fund raising, head office management, investment and the provision of staff accommodation…”
The Supreme Court continued:-
“55. The same interpretation also tends to serve the statutory objective of providing a generally simple, predictable and consistent answer to the question whether a charity ratepayer should have relief from business rates, depending upon its sole or main use (or prospective use) of the hereditament, as recommended in the Pritchard Report. At least it does so better than Merton’s interpretation, when there is no issue as to whether the ratepayer is a charity. All that the rating authority has to do is to ascertain what is or are the (necessarily charitable) purposes of the charity, and then decide whether in fact the sole or main use of the hereditament is in furtherance of those purposes, or sufficiently closely connected with their fulfilment. The purpose or purposes of the charity will usually be apparent from its constitution, or (if registered) by a simple online inspection of the register maintained by the Charity Commission. The question whether that purpose or those purposes are fulfilled by the sole or main use of the hereditament is a factual matter, and will not require the rating authority to don the cloak of the Charity Commission or the robe of the Chancery judge to decide whether those purposes are charitable.
56. The position is not so simple where the ratepayer claims to be a charity but is not registered as such. Non-registration does not necessarily mean that the ratepayer is not a charity and in such a case the rating authority would have to conduct a conventional charity law analysis of that question, having regard to the terms of the ratepayer’s written constitution or, if there is no written constitution or the written constitution is not decisive, to the actual facts about the whole of the ratepayer’s activities. That enquiry would of course reveal the ratepayer’s purposes, and they would all have to be charitable if the ratepayer was to be regarded as a charity…”
“58. In the context of Section 43(6) (and its predecessor, Section 11 of the 1961 Act), it is clear that Parliament did not intend that a counter-factual analysis should be adopted. On the contrary, it intended that the relevant analysis should proceed by reference to the general law of charity. The law assesses whether a body’s purposes are charitable by looking at its purposes and activities overall, not on a site-by-site basis. To try to apply Section 43(6) by employing a site-by-site analysis as Merton contends would involve a departure from, not the application of, the approach applied under the general law of charity.”
The case concerned a health charity, but it is clear that the same principles are to be applied to an education charity.
DISCRIMINATION
June 7th, 2023 by James Goudie KC in Human Rights and Public Sector Equality DutySection 390(1) of the Education Act 1996 provides that a local authority in England shall constitute a Standing Advisory Council on religious education for the purposes mentioned in Section 391(1). Section 390(2) provides that such a Council shall consist of such groups appointed by the authority as representative members ( representative groups ) as are required by subsection (4). Subsection (4)(a) states that the representative groups so required are, in the case of an area in England, a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area. In R ( BOWEN ) v KENT COUNTY COUNCIL (2023) EWHC 1261 ( Admin ) Constable J holds that the County Council’s refusal to consider a humanist for membership of its Standing Council was unlawful. It was discriminatory, pursuant to ECHR Article 14, in conjunction with Article 9 and Article 2 of the First Protocol, to exclude someone from membership solely by reference to the fact that their belief, whilst appropriate to be included within the agreed syllabus for religious education, in accordance with Section 80 of the Education Act 2002, was a non-religious, rather than a religious, belief.