Only Treaties which have been incorporated into domestic law give rise to legally enforceable rights. The 2015 Paris Climate Change Agreement has not been incorporated into domestic law. The Court of Appeal in R (Friends of the Earth) v Secretaries of State (2023) EWCA 14 holds that it was a tenable interpretation of the Treaty that approval of an investment in a liquefied natural gas project was aligned with the UK’s obligations under the Treaty. On the basis that questions of interpretation of an unincorporated Treaty are for the Executive to determine, the Court holds that a decision-maker cannot be challenged when they adopt a tenable view on a point of unincorporated international law.
Interpretation of contracts
January 13th, 2023 by James Goudie KC in Decision making and ContractsIn MALIK v HUSSAIN (2023) EWCA Civ 2, concerned with exchange of land contracts, at paras 40 &42 the Court of Appeal affirms that the question of interpretation of a contract is, and must be kept, distinct from the issue of whether terms are to be implied into the contract. The process of implication involves a rather different exercise than that of interpretation. The express terms must be interpreted before one can consider the question of implication. The appropriate course is first to interpret the express provision , carrying out the unitary exercise and adopting the iterative approach identified and explained in the Supreme Court in WOOD v CAPITA, it being unimportant whether one starts with the factual background and the consequences of rival constructions or a close examination of the relevant language in the contract. constructions
Care Act or Housing Act?
January 10th, 2023 by James Goudie KC in HousingR (Campbell)v EALING LBC (2023) EWHC 10 (Admin) concerns the withdrawal of funding of temporary accommodation and the interaction and interplay between a unitary local authority’s obligations under the Care Act 2014 and its obligations under Parts VI and VII of the Housing Act 1996. The lawfulness of the Council’s funding of the Claimant’s accommodation was at the centre of the case. Section 23 of the Care Act prohibited the meeting of a housing need that is required to be met under the Housing Act. Although the need for accommodation is not a need for care and support under the Care Act, local authorities have a power to provide accommodation under the Care Act in circumstances where accommodation is required to deliver care and support effectively. This power is not however unfettered. It does not extend to scenarios in which Section 23 bites. The Council had obligations under Part VI of the Housing Act under which the Claimant was a qualifying person and duly placed on the Council’s housing register. The Council owed duties to the Claimant under Part VII, but he wanted to pursue a Part VI process.
Caravan site licences
January 10th, 2023 by James Goudie KC in Planning and EnvironmentalIn TALLINGTON LAKES LTD v SOUTH KESTEVEN DISTRICT COUNCIL (2022) UKUT 334 (LC) the Tribunal addresses the concepts of “occupier” and “relevant protected site” under the Caravan Sites and Control of Development Act 1960. The appellant, the freeholder of the site, was found to be the occupier and the correct licence holder. The appellant’s argument that it was the management company which operated the caravan park that was the occupier failed. An occupier had to occupy the land by virtue of an estate or interest therein. That meant an equitable estate or interest. That did not encompass a licensee or the manager under a management contract. Where the licence and planning permissions allowed mixed use that included residential the site was a relevant protected site.
Indirect discrimination in allocation
January 10th, 2023 by James Goudie KC in HousingIn R(TX) v Adur District Council (2022) EWHC 3340 (Admin) the Court held that the Council’s local connection criterion for priority, albeit expressed neutrally, was discriminatory, disproportionate, and unlawful. It put women at a disadvantage. Women were significantly more likely to be victims of domestic abuse and as a result have to move to the area of another local housing authority.
Disclosure of information
January 10th, 2023 by James Goudie KC in Non Judicial ControlIn SPOTLIGHT ON COMPETITION v INFORMATION COMMISSIONER, EA-2022-0014 & EA-2022-0061, the First Tier Tribunal is concerned with loans to support businesses during the Covid pandemic, holds that it is not in the public interest to release information that could expose the recipients to fraudsters by revealing the recipients’ names, and summarises the principles relating to the “commercial interests “ exemption from disclosure under the Freedom of Information Act 2000 as follows : –
- “ Commercial interests “ should be interpreted “ broadly “ : paras 188/189;
- The exemption is “ prejudice based “ : para 190;
- The prejudice must be more probable than not : there must be a real and significant risk of prejudice : ibid;
- The public authority must show that (i) there is some causative link between the potential disclosure and the prejudice, and (ii) the prejudice is real, actual or of substance : ibid;
- The harm must relate to the interests protected by the exemption : ibid;
- It is a qualified exemption : para 191;
- In considering the factors that militate against disclosure the primary focus should be on the particular interest which the exemption is designed to protect : para 192;
- Where the specified activity or interest which would be likely to be prejudiced is a public interest, there is an overlap between whether or nor not the commercial interest exemption is engaged and any subsequent analysis of the public interest test : para313;
There is a public interest in preventing prejudice to commercial interests : para 314.
Substitution mindset
January 5th, 2023 by James Goudie KC in Judicial Control, Liability and LitigationIn considering whether a misconduct dismissal was fair or outside the band of reasonable responses open to the employer and unfair, an Employment Tribunal must guard against a “ substitution mindset “, both in relation to the employer’s investigation and the decision to dismiss, and consider the fairness of the disciplinary process as a whole : Leicester City Council v Chapman (2022) EAT 178 at paras 31-37 inclusive.
ECHR ARTICLE A2P1
January 5th, 2023 by James Goudie KC in Human Rights and Public Sector Equality DutyIn R (Isherwood ) v Welsh Ministers (2022) EWHC 3331 ( Admin ) Steyn J considered the case law on the interpretation of Art A2P1 and summarised the points emerging from them : Paras 169-198 inclusive. She also stated ( at para 129 ) that common law constitutional rights can be abrogated by legislation expressly or by necessary implication, but only if it is crystal clear that the legislature intended to override the fundamental right. A reasonable implication will not suffice. The implication must be one that truly necessarily follows from the express provisions of the legislation, construed in their context.