In R (T) v SoS for Education (2018) EWHC 2582 (Admin) three parents and their three children applied for judicial review of the policy of the SoS to grant additional free childcare to working parents, but deny it to lone parents unable to work. Lewis J held that the provision of an additional 15 hours of free childcare to the children of working parents did not breach ECHR Article 14 read with Article 8, despite a differential treatment between families where one parent worked and lone parents who were unable to work because they were carers or were the victims of domestic violence. The childcare policy was intended to enable parents to return to work, or work more hours. It was objectively justified.
Village Green
October 8th, 2018 by James Goudie KC in Land, Goods and ServicesThe issue in TW Logistics Ltd v Essex County Council (2018) EWCA Civ 2172 was whether part of a working port had been properly registered as a town or village green (“TVG”). Barling J had held that it was. The Court of Appeal unanimously dismissed the appeal. A landowner is free, and indeed has the right, to continue in his previous commercial or other activities on the land after registration, so long as he does not interfere with the corresponding right of local inhabitants to continue in their use of it for recreation.
Consultation
October 5th, 2018 by James Goudie KC in Decision making and ContractsIn R (Help Refugees Ltd) v SSHD (2018) EWCA Civ 2098 the Court of Appeal has restated propositions in relation to the scope of a duty to consult, as follows:-
(1) Irrespective of how the duty to consult has been generated, the common law duty of procedural fairness will inform the manner in which the consultation should be conducted;
(2) The public body doing the consulting must put a consultee into a position properly to consider and respond to the consultation request, without which the consultation process would be defeated. Consultees must be told enough – and in sufficiently clear terms – to enable them to make an intelligent response. Therefore, a consultation will be unfair and unlawful if the proposer fails to give sufficient reasons for a proposal, or where the consultation paper is materially misleading, or so confused that it does not reasonably allow a proper and effective response.
(3) The content of the duty – what the duty requires of the consultation – is fact-specific and can vary greatly from one context to another, depending on the particular provision in question, including its context and purpose. The requirements being linked particularly to the purpose of the consultation.
(4) A consultation may be unlawful if it fails to achieve the purpose for which the duty to consult was imposed.
(5) The Courts will not lightly find that a consultation process is unfair. Unless there is a specification as to the matters that are to be consulted upon, it is for the public body charged with performing the consultation to determine how it is to be carried out, including the manner and extent of the consultation, subject only to review by the Court on conventional judicial review grounds. Therefore, for a consultation to be found to be unlawful, “clear unfairness must be shown”.
(6) The product of the consultation must be conscientiously taken into account before finalising any decision.
Read more »
Legitimate Expectation
October 5th, 2018 by James Goudie KC in Decision making and ContractsIn R (Save Britain’s Heritage) v SoS for CLG and Westminster City Council (2018) EWCA Civ 2137 the Court of Appeal considered whether there was a legitimate expectation that reasons would be given, based on a promise. The Court reaffirmed (paragraph 39) that in such a case the position is that, if a public body indicates a clear and unequivocal policy that will be followed and applied in a particular type of case, then an individual is entitled to expect that policy to be operated, unless and until a reasonable decision is taken that the policy be modified or withdrawn, or implementation interferes with that body’s other statutory duties. Read more »
Concession Contracts
October 1st, 2018 by James Goudie KC in Decision making and ContractsIn Ocean Outdoor UK Ltd v Hammersmith and Fulham LBC (2018) EWHC 2508 (TCC) the Claimant challenged the decision by the defendant (“the Council”), to enter into arrangements with Outdoor Plus Limited (“Outdoor Plus”) for the leasing of two plots of land and operation of two metal towers, with media screens and supportive software, one on each plot, in West London (“the Two Towers”) following a tender exercise.
Staff Transfers
August 29th, 2018 by James Goudie KC in Decision making and ContractsIn Nicholls v Croydon LBC and Hacker v Croydon LBC, UKEAT/0033 and 0004/18/RN, the employment of the Claimants (BMA Appellants and Unite Appellants) transferred on 1 April 2013 from the Croydon Primary Care Trust (“the Trust”) to the London Borough of Croydon (“the Council”). In connection with the transfer, the Secretary of State made the Health and Social Care Act 2012 (Croydon Primary Care Trust) Staff Transfer Scheme 2013 (“the Staff Transfer Scheme”). He did so in exercise of the powers conferred by Section 300 of the Health and Social Care Act 2012. Read more »
Amenability to Judicial Review
August 29th, 2018 by James Goudie KC in Judicial Control, Liability and LitigationIn R (Ames) v Lord Chancellor (2018) EWHC 2250 (Admin) a Divisional Court (Holroyde LJ and Green J) revisited the issue of when a public law function is being exercised with can properly be the subject of judicial view. The Defendant contended that the challenged decision was made at the conclusion of a course of negotiation of a contract and lacked any public law element. Following a review of the authorities, the Court, at paragraph 55, derived the following principles:- Read more »
Libraries
August 16th, 2018 by James Goudie KC in Land, Goods and ServicesIn R ( WX ) v Northamptonshire County Council ( 2018 ) EWHC 2178 ( Admin) Yip J ruled that the Council’s library closure decisions were unlawful. The grounds considered were the duties under the Public Libraries and Museums Act 1964, with respect to consultation and the PSED, and under Section 11 of the Children Act 2004 and Section 5A(1) of the Childcare Act 2006. Yip J said, at para 116, that the need to make savings was “ a legitimate, indeed, necessary driver”for further cuts, but it not relieve the Council’s duty to Act lawfully.
Consultation / Tameside
August 16th, 2018 by James Goudie KC in Decision making and ContractsIn R ( Langton ) v SoS for DEFRA ( 2018 ) EWHC 2190 ( Admin ) Sir Ross Cranston restated principles in relation to consultation as follows.
Para 104 : there is a “ high threshold” of being “ clearly and radically wrong “ so as to render a consultation procedurally unfair and thus unlawful.
Para 105 : a consultation has to be considered in its statutory context.
Para 106 : once a consultation is launched it must be carried out fairly, but the statutory context is relevant when considering the performance of the consultation duty, the specific matters on which to consult, and the basis upon which the consultation should proceed.
Para 109 : only in exceptional cases and special circumstances is reference required to “ discarded alternatives”.
Para 115: as to how consultation responses are addressed, for unlawfulness the claimant must establish that a matter was such that no reasonable decision maker would have failed in the circumstances to take into account as a relevant consideration. Read more »