Mercer v Alternative Future Group Ltd, UKEAT/0196/20/JOJ, concerns trade Union activities, participation in industrial action, and ECHR Article 11. EAT President Choudhury J states the principles from para 32. . Article 11 confers a qualified right to freedom of association and assembly. This includes the right to participate in trade Union activity. Restrictions on the exercise of the right are permitted where these are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others. The obligations of the State under Article 11 include both the negative one not to commit any act amounting to an infringement of the right and the positive one to secure the enjoyment of the right. The right to take industrial action and to strike is an essential element of the right and is protected by it. Any restriction, however minimal, on the right to participate in a trade Union-sanctioned protest or strike action amounts to an interference with Article 11 rights. When there is an interference with the right the question is whether such interference is justified. That involves a consideration of proportionality. When there is an infringement of the right Section 146 of TULRCA 1992 should be read as encompassing participation in industrial action.
Trade Union Rights
June 7th, 2021 by James Goudie KC in Human Rights and Public Sector Equality Duty
Unfair Procedure
June 4th, 2021 by James Goudie KC in Planning and EnvironmentalIn R (Save Warsash and the Western Wards) v Fareham BC (2021) EWHC 1435 (Admin Jay J quashed a planning permission. The Council had prejudiced objectors by making important documents available to them late which could have made a material difference to the outcome. There was a breach of sections 100B and 100D of LGA 1972. It was unreasonable not to defer the meeting by which the permission was granted. However, in R (Wyatt) v Fareham BC (2021) EWHC 1434 (Admin) Jay J held that there had been no violation of the obligation to assess the environmental impact of development upon wetlands important to bird life.
Procurement Policy
June 3rd, 2021 by James Goudie KC in Decision making and ContractsThe Cabinet Office has issued a National Procurement Policy Statement with immediate effect. This amongst other matters requires contracting authorities to have regard to national strategic priorities for public procurement when exercising their functions relating to procurement. These are (1) creating new businesses, new jobs and new skills, (2) tackling climate change and reducing waste, including contributing to the target to reduce greenhouse gas emissions to net zero by 2050 and delivering environmental benefits,
and (3) improving supplier diversity, innovation and resilience. Authorities should take a “broad view” of value for money that includes the improvement of social welfare or wellbeing, balanced with delivery of the core purpose of the contract.
Delegation
June 2nd, 2021 by James Goudie KC in Decision making and ContractsThe Planning Committee of a local authority resolves to grant planning permission for a mixed use development. It does so subject to the developer entering into: “an appropriate legal agreement.” Council officers entered into a s 106 agreement which made affordable housing provision. They did not return to the Committee. Did they act beyond their delegated authority? No, says the Court of Appeal in R (Flynn) v Southwark LBC (2021) EWCA Civ 827, at paras 39-63 inc & 95-97.
Rectification
May 28th, 2021 by James Goudie KC in Decision making and ContractsIn Tyne & Wear Passenger Transport Executive v National Union of Rail etc Workers (2021):EWHC 1388 (Ch) it is held that a collective agreement can be rectified. Rectification is not confined to legally binding contracts: para 58 and following. The jurisdiction to rectify is quite general. It may be exercised in respect of a “wide range of contracts and documents inter partes.”
Habitats
May 28th, 2021 by James Goudie KC in Planning and EnvironmentalIn R (Wyatt) v Fareham BC (2021) EWHC 1434 (Admin) Jay J dismissed 8 grounds for judicial review of the Council’s decision to grant outline planning permission for a housing development, notwithstanding advice to the contrary from Natural England on habitats grounds and in accordance with the precautionary principle. Applying an appropriate margin of appreciation, in an area which is technical and complex, the Judge was not persuaded, on a Wednesbury basis, that the assessment carried out for the purposes of the planning application was otherwise than sufficiently precautionary.
Rate Relief
May 28th, 2021 by James Goudie KC in Council Tax and RatesThe issue in Nuffield Health v Merton LBC (2021);EWCA Civ 826 was whether Nuffield Health, a registered charity, was entitled to mandatory relief from non-domestic rates in respect of its occupation of fitness and well-being centres, notwithstanding that membership fees at market rates were payable. The statutory basis of the claimed relief was that (1) it was a charity, as Nuffield Health is, or the trustees of a charity, AND (2) the hereditament was used “wholly or mainly for charitable purposes”, as defined in the Charities Act 2011, that is “for the public benefit”. The Court considers the public benefit test.
Breach of Procurement Rules
May 28th, 2021 by James Goudie KC in Decision making and ContractsIn R (Trinity College) v SoS for MHCLG (2021) EWHC 1355 (Admin) the commercial arm of Trinity College Cambridge applied unsuccessfully for judicial review of the refusal by the SoS to grant it funding under the European Regional Development Fund for the creation of a research hub at the Cambridge Science Park. In relation to the main project building contract, the claimant, albeit not a contracting authority, was in breach of the procurement rules applicable to ERDF projects. The SoS was bound to reject the application because the amount of the grant would have to be reduced and then the project would not be a viable candidate for ERDF support.
Pension Fund Consequences of TUPE Transfers
May 27th, 2021 by James Goudie KC in Land, Goods and ServicesWhen a local authority enters into a contract for services with a body that is admitted to the LGPS terms may be agreed with respect to pension risk. R (Enterprise Managed Services Ltd ) v SoS for MHCLG and Northamptonshire Councils (2021):1436 (Admin) concerns when the contract comes to an end and the contractor/employer exits the LGPS and there is a deficit in relation to the liability to pay benefits.
In this context the LGPS Regulations have been amended. Bourne J holds that the amendments are lawful. They are not invalidated as being unjustifiably and unlawfully retroactive and retrospective, contrary to any of common law, ECHR Arts 6, 14 and 1/1, or EU State Aid provisions.