In R (SXM) v Disclosure and barring Service (2020) EWHC 624 (Admin) (DC) the Court, at paras 81-85, addressed the scope of positive obligations under ECHR Article 8. At para 84, the Court confirmed that there may be “ a positive obligation to provide information concerning health risks to which a person may have been exposed.”
Health Risks: Positive Obligations
March 25th, 2020 by James Goudie KC in Human Rights and Public Sector Equality Duty
Virtual LA meetings
March 24th, 2020 by Peter Oldham QC in GeneralThe Coronavirus Bill, introduced into the House of Lords today, now has a cl 78 allowing the Secretary of State in England and Ministers in Wales to make regulations for LA meetings prior to 7th May 2021, including regulations for virtual attendance.
Cl 78 provides as follows – see cl 78(2) for regulations about virtual attendance:-
78 Local authority meetings
(1) The relevant national authority may by regulations make provision relating to—
(a) requirements to hold local authority meetings;
(b) the times at or by which, periods within which, or frequency with which, local authority meetings are to be held;
(c) the places at which local authority meetings are to be held;
(d) the manner in which persons may attend, speak at, vote in, or otherwise participate in, local authority meetings;
(e) public admission and access to local authority meetings;
(f) the places at which, and manner in which, documents relating to local authority meetings are to be open to inspection by, or otherwise available to, members of the public.
(2) The provision which may be made by virtue of subsection (1)(d) includes in particular provision for persons to attend, speak at, vote in, or otherwise participate in, local authority meetings without all of the persons, or without any of the persons, being together in the same place.
(3) The regulations may make provision only in relation to local authority meetings required to be held, or held, before 7 May 2021.
Peter Oldham QC
Election Petition
March 24th, 2020 by James Goudie KC in Elections and BylawsOn the dissolution of Parliament, a Parliamentary Bye-Election Petition does not abate, with the Court having no jurisdiction with regard to costs. Rather, it can be withdrawn, with the leave of the Court, upon the petitioner paying the respondent’s costs. So held in GREENE v FORBES (2020) EWHC 676 (QB).
HMOs
March 23rd, 2020 by James Goudie KC in HousingThe manager of a house in multiple occupation charged with committing an offence has the burden of establishing, on the balance of probabilities, the defence of reasonable excuse under Section 234(3) of the Housing Act 2004. So held in IR MANAGEMENT LTD v SALFORD CITY COUNCIL (2020) UKUT 81 (LC).
Guidance on coronavirus
March 22nd, 2020 by Peter Oldham QC in GeneralThere is now a great deal of Government guidance, much of it informal as yet but clearly intended to be followed, and other Government material related to the Coronavirus Bill. It is growing by the hour. Here’s a collection of material that I’ve come across, under different headings: general, social care, housing and day centres, education, business rates and procurement.
The MHCLG twitter account is a useful source of information – https://twitter.com/mhclg.
General
Statement of support from the Minister https://www.gov.uk/government/news/robert-jenrick-reaffirms-support-for-councils-in-their-coronavirus-response
“Coronavirus Bill – Summary of Impacts” https://www.gov.uk/government/publications/coronavirus-bill-summary-of-impacts
“Guidance: what the Coronavirus Bill will do” https://www.gov.uk/government/publications/coronavirus-bill-what-it-will-do/what-the-coronavirus-bill-will-do
Explanatory notes to the Bill https://publications.parliament.uk/pa/bills/cbill/58-01/0122/en/20122en.pdf
Social care
Responding to COVID-19: the ethical framework for adult social care https://www.gov.uk/government/publications/covid-19-ethical-framework-for-adult-social-care/responding-to-covid-19-the-ethical-framework-for-adult-social-care
COVID-19: guidance on residential care provision https://www.gov.uk/government/publications/covid-19-residential-care-supported-living-and-home-care-guidance/covid-19-guidance-on-residential-care-provision
COVID-19: guidance for supported living provision https://www.gov.uk/government/publications/covid-19-residential-care-supported-living-and-home-care-guidance/covid-19-guidance-for-supported-living-provision
COVID-19: guidance on home care provision https://www.gov.uk/government/publications/covid-19-residential-care-supported-living-and-home-care-guidance/covid-19-guidance-on-home-care-provision
Guidance on shielding and protecting people defined on medical grounds as extremely vulnerable from COVID-19 https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19
Housing and day centres
COVID-19: guidance for hostel or day centre providers of services for people experiencing rough sleeping https://www.gov.uk/government/publications/covid-19-guidance-on-services-for-people-experiencing-rough-sleeping/covid-19-guidance-for-hostel-or-day-centre-providers-of-services-for-people-experiencing-rough-sleeping
Press release – Complete ban on evictions and additional protection for renters https://www.gov.uk/government/news/complete-ban-on-evictions-and-additional-protection-for-renters
Education
Guidance for schools, childcare providers, colleges and local authorities in England on maintaining educational provision https://www.gov.uk/government/publications/coronavirus-covid-19-maintaining-educational-provision/guidance-for-schools-colleges-and-local-authorities-on-maintaining-educational-provision
COVID-19: guidance for education settings https://www.gov.uk/government/publications/guidance-to-educational-settings-about-covid-19/guidance-to-educational-settings-about-covid-19
COVID-19: free school meals guidance for schoolshttps://www.gov.uk/government/publications/covid-19-free-school-meals-guidance/covid-19-free-school-meals-guidance-for-schools
Business rates
Business Rates Expanded Retail Discount 2020/21: Coronavirus Response – Local Authority Guidance https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/873622/Expanded_Retail_Discount_Guidance.pdf
Procurement
Procurement Policy Note – Responding to COVID-19
Peter Oldham QC
Coronavirus and public attendance at LA meetings
March 22nd, 2020 by Peter Oldham QC in GeneralThe right of attendance LA meetings in s 100A of the LGA 1972 is (subsection (8)) “without prejudice to any power of exclusion to suppress or prevent disorderly conduct or other misbehaviour at a meeting.”
Can LAs exclude the public because of the threat of passing on the coronavirus? The right of attendance is an important part of local democracy, but I think the answer is probably yes.
The caselaw largely involves scuffles, protests (actual or threatened), and overcrowding. But note the following in Lucas v Mason (1875) LR 10 Ex 251 (obiter, emphasis added):-
“It is no doubt the duty of the chairman of a meeting, where a large body of people are gathered together, to do his best to preserve order, and it is equally the duty of those who are acting as stewards or managers to assist him in so doing, but the nature and extent of this duty on both sides cannot be very closely defined a priori, and must necessarily arise out of, and in character and extent depend upon, the events and emergencies which may from time to time arise.”
In Doyle v Falconer (1866) LR 1 PC 328, the Privy Council referred obiter to the “right to remove for self-security”.
These are old cases but they have been referred to in modern authority: R v Brent HA, ex parte Francis [1985] QB 869 and Laporte v Metropolitan Commissioner [2014] EWHC 3574 (QB).
My own view is that, given the Government’s policy of suppression of the disease through self-isolation and social distancing, a Court would probably decide that, as things stand, the threat of passing on the disease by attendance fell within the scope of s 100A(8), at least if the LA had made it clear that attendance was not allowed because of the pandemic.
That said, it would be good to get some guidance from MHCLG. There is a deluge of guidance from the Government on COVID-19, growing by the hour, but I don’t think there is any guidance on this issue yet.
LAs excluding on this basis should ideally show that they have taken countervailing factors (e.g. Art 10) into account, and put in place measures to allow publicity through other means.
Peter Oldham QC
Judicial Review
March 20th, 2020 by James Goudie KC in HousingIn R ( NOLSON ) v STEVENAGE BOROUGH COUNCIL (2020) EWCA 379, at paragraph 18, the Court of Appeal, per Hickinbottom LJ, gives important guidance on applications, including not least applications for interim relief.
Adjudication and Fraud
March 19th, 2020 by James Goudie KC in Judicial Control, Liability and LitigationIn PBS v BESTER (2020) EWCA 404 Coulson LJ at paragraph 23 stated principles with respect to enforcement of compulsory adjudication awards in the construction industry when there are allegations of fraud, as follows : (1) If the allegations of fraud were made, or could and should have been made, in the adjudication, that cannot subsequently amount to a reason not to enforce the decision; (2) If on the other hand (I) the adjudicator’ s decision was arguably procured by fraud or (I) where the material relied upon by the adjudicator is shown to be both (a) material and (b) arguably fraudulent and (iii) the allegation of fraud could not have been raised in the adjudication, such allegations can be a proper ground for resisting enforcement.