The Round Up: Grenfell, lost DVDs, and a Deputy Judge who erred in law.

21 May 2018 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law.

Credit: The Guardian

In the News:

An independent report into building regulations, commissioned by the government in the wake of the Grenfell disaster, has called for the current regulatory system to be overhauled.

However, the report surprised some because it did not recommend a ban on flammable cladding. It also declined to recommend stopping so-called ‘desktop studies’, where materials are tested without setting them on fire. The chairman of Grenfell United expressed disappointment at this conclusion. The Royal Institute of British Architects expressed support for banning inflammable cladding and the government has said it will consult on the issue. The Prime Minister has also pledged £400 million to remove flammable cladding from tower blocks.

The author of the report, Dame Judith Hackitt, said that banning the cladding was insufficient. Instead, she stated that a ‘whole system change’ is needed. Dame Hackitt warned that cost was being prioritised over safety and that ‘banning activities and particular materials […] will create a false sense of security’.

The report recommended fundamental changes to building regulations, saying that the process which drives compliance with the regulations are ‘weak and complex’. Dame Hackitt found that there was a ‘race to the bottom’ in the building industry that was putting people at risk. She also wrote that product testing must be made more transparent, and that residents’ voices were not being listened to.

The Grenfell Inquiry will open this week. For the first two weeks, the lives of those who died will be remembered in a series of commemorations.

In Other News….

• The US inaugurated its embassy in Jerusalem, sparking a wave of protests and violence in Gaza. Protesters had been gathering on the Gaza side of the border with Israel for seven weeks. On Monday, tensions culminated when Israeli troops opened fire, killing 62 Palestinians, of whom 50 have been identified as members of Hamas. It was the deadliest day of violence in the area since 2014. Whilst the US has voiced its support, Israel faced international condemnation (including from the UK). At the UN, Australia and the US voted against an independent UN-led investigation into the issue. The BBC reports here.
• The CPS was fined £325,000 for losing unencrypted DVD’s containing recordings of police interviews. The DVDs contained recordings conducted with 15 victims of child sex abuse, sensitive personal details of the perpetrator, and identifying information. The DVDs were sent by tracked delivery between two CPS offices and left at reception. Whilst the DVDs have not been found, as far as the Information Commissioner is aware they have not been accessed by an unauthorised third party. The fine is the second penalty imposed on the CPS for a similar issue. The Law Gazette reports here.
• A teacher who was sacked for showing a horror film to his class had his claim for disability discrimination upheld in the Court of Appeal. Mr Grosset, who has cystic fibrosis, was fired on the ground of gross misconduct. Although reasonable adjustments were made at the start of his employment, when a new head teacher took over the situation deteriorated. Because no proper record was kept of his condition, Mr Grosset was given an increased workload that he could not cope with. The Employment Tribunal ruled Mr Grosset had shown the film while suffering from an impaired mental state, arising from such a high level of stress that errors of judgement might arise. The Court of Appeal upheld this ruling. Mr Grosset has been given £646,000 compensation. The Local Government Lawyer reports here, and the judgement is here.

In the Courts:

• Flintshire County Council v R. (On the Application of Jayes): The matter concerned Flintshire County Council’s decision to give planning permission to a “residential Gypsy caravan site for a temporary period of five years” [1]. The Deputy Judge found that the County Council had acted unreasonably by granting permission, because they had not ascertained and evaluated the best interests of the children who lived on the Site. The Court of Appeal, however, held that the Deputy Judge had erred by reaching this conclusion. Whether there was sufficient evidence to determine that planning permission should be granted was a question for the decision-maker. The court should only interfere with such a judgement on public law grounds. It was open to the planning officer to conclude that refusing temporary planning permission would be a disproportionate interference with Article 8. Forcing the 11 children to live on the roadside, with the consequent disruption to the education for at least some of them, was sufficient to outweigh the planning harm that the officer had identified.
• R (on the application of Joshi and another) v Secretary of State for the Home Department: The primary issue concerned the first claimant’s application for leave to remain in the UK, which had been characterised as a human rights claim. It was held that the court should look to the broad substance, not the form, of the claimant’s application. The letter should not be treated as if it was a statute or detailed commercial contract. The letter was reasonably read as making a human rights claim, because it referred to Article 8 of the ECHR. The second issue was whether the Secretary of State’s decision on the leave applications was null or void on the grounds of illegality. The court held that, although there had been a delay in informing the claimants of the decisions reached on their applications, this did not constitute an act of bad faith or abuse of power.
• R (on the application of EM) v The Secretary of State for the Home Department: The court held that the state is obliged to provide necessary assistance and support directed to the overall needs of each potential victim of human trafficking (‘PVoTs’). However, the method of doing so is not prescribed. This interpretation followed the wording of article 11, Directive 2011/36/EU. In addition, the requirement does not entail an obligation to secure psychological recovery. Secondly, the claimant was given a level of assistance and support that met the state’s required domestic and international obligations. The claimant was known by the medical staff at Yarl’s Wood to be a PVoT and received constant treatment for her psychological difficulties. Accordingly, it was not a suitable case for a systemic challenge.

On the UKHRB

Martin Downs wrote about whether civil partnerships should only be available to same sex couples, in light of a Supreme Court case on the issue.

A new podcast is available on Law Pod UK, in which Dominic Ruck-Keene discusses the ‘right to be forgotten’.

Rosalind English explains PW v Chelsea and Westminster Hospital Trust, whilst David Hart QC has written on R (o.t.a. Gallaher et al) v. Competition and Markets Authority.

Later in the week, Rosalind English considered environmental protection after Brexit and Shaheen Rahman described new guidance published by the Chief Coroner.

Events:

• Placeless people: Writing, Rights and Refugees, 22^nd May at IALS. More information here.
• Time for a Time Limit? Immigration Detention and Human Rights: The Human Rights Lawyers’ Association, 24th May at Bindmans LLP. More information here.
• Transparency in the Family Courts: Gresham College, 24^th May at Barnard’s Inn Hall. More information here.

If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor at jonathan.metzer@1cor.com