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The pumping of raw, untreated sewage into Britain’s waterways is one of the defining political issues of the day. Its potency as a legal issue, however, is limited. That, at least, is the outcome of R (Wild Justice) v OFWAT [2023] EWCA Civ 28.
Sewage polluting the River Coln, at Fairford, Gloucestershire, this January. Photograph: Graeme Robertson/Guardian
The Claimant, a not-for-profit organisation which advocates for the protection of wildlife and nature, asked the Court of Appeal for permission to apply for judicial review of the Respondent’s alleged failure to perform its duties to regulate the discharge of raw sewage.
Permission had already been refused twice below – on the papers by Ellenbogen J, and at an oral hearing by Bourne J. This appeal was heard by Bean LJ.
R (o.t.a. Palestine Solidarity Campaign Ltd and Jacqueline Lewis) v. Secretary of State for Communities and Local Government [2017] EWHC 1502 (Admin) 22 June 2017, Sir Ross Cranston – read judgment
Many people like to have a say over the investment policies of their pension funds. They may not want investment in fossil fuels, companies with questionable working practices, arms manufacturers, Israel or indeed any company which supports Israel’s occupation of the West Bank and Gaza Strip – to choose but a few of people’s current choices. And pension funds, left to their own devices, may wish to adopt one or more of these choices to reflect their pensioners’ views.
Hence the significance of this challenge to some statutory guidance which sought to ban some of those pension decisions but to permit others. The context was local government employees (5 million current or former employees). It arose on that ceaseless battleground of government’s direction/intermeddling in local government affairs.
The key bit of the impugned guidance was that those running local authority pensions must not use their policies to
pursue boycotts, divestment and sanctions…against foreign nations and UK defence industries…other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government.”;
or
“pursue policies that are contrary to UK foreign policy or UK defence policy”.
The main issue in this challenge was whether these prohibitions went beyond the SoS’s powers under the relevant pension provisions.
No prizes for guessing why the Palestine Solidarity Campaign (in conjunction with War on Want and the Quakers) supported this challenge. The fact that the domestic arms trade got a special unbannability status would provoke many to go to law.
As prefigured on this Blog here, Keehan J has handed down a public Judgment explaining how he used the inherent jurisdiction of the High Court to make novel and far-reaching Orders against ten men.
The inherent jurisdiction is the power vested in the Higher Courts to maintain their authority and prevent their processes being obstructed and abused. Traditionally this has also included the exercise on behalf of the sovereign as parens patriae of particular powers concerning children – most commonly wardship.
Birmingham City Council were addressing a real and significant issue. This had been highlighted in Rotherham. The gold standard response is to secure criminal convictions as occurred in Bristol. However, in some instances, the evidence will not secure jury convictions and hence the search is on for alternatives.
Moseley R (ota) v. London Borough of Haringey [2014] UK 56 – read judgment
Lord Wilson posed the question, answered today by the Supreme Court, with concision. When Parliament requires a local authority to consult interested persons before making a decision which would potentially affect all of its inhabitants, what are the ingredients of the requisite consultation?
The judgments reveal the surprising fact that the core principles of consultation (named after Gunning, as public lawyers will know) have never been approved by the Supreme Court or its predecessor, the House of Lords. The Court was happy to endorse them as embodiments of fairness. But it went on to consider the duty to consult on rejected alternatives – as very recently debated by the Court of Appeal in the Rusal case – see my post here.
Karia, R (on the application of) v Leicester City Council (Sir Stephen Silber, acting as High Court Judge) [2014] EWHC 3105 (Admin) (30 September 2014)- read judgment
In a robust judgment Sir Stephen Silber has asserted that neither the ordinary laws of judicial review, nor the Equality Act nor the Human Rights Act require the courts to micro-manage the decisions of public authorities. Indeed the latter two statutory powers are not designed as a back door into a merits review of a decision that is restricted to the court’s review of the legality of a public sector decision.
Background facts and law
The claimant, a 101 year old woman of Gujarati descent, challenged the decision to close the care home which she has occupied since 1999. Her grounds of challenge were threefold:
1. that the Council had failed to take account of material issues of fact relating to the present and future levels of demand for residential care one provision
2. that it had reached its decision without due regard to the need under the Equality Act 2010 to avoid unlawful discrimination in the provision of services
3. and it had failed to take into account the impact of the closure on the claimant’s Article 8 rights
She also complained that she had a legitimate expectation of a home for life at Herrick Lodge and that the Council had not considered whether her needs could be met in alternative placements.
Although the judge was at pains to stress that as this was a judicial review application, it was not for him to assess the merits of the Council’s decision, merely its legality. Having done so, he concluded that the Council had not acted irrationally, nor had it paid due regard to the need to advance equality of opportunity.
It is not for the Court to determine whether proper weight has been given to a factor where as here there has been proper appreciation of the potential impact of the decision on equality issues.
LH, R (o.t.a) v. Shropshire Council [2014] EWCA 404 (Civ), Court of Appeal, 4 April 2014 – read judgment
Good advertisement for the flexibility of the common law, this case. This is because the duty to consult owed by a public body extends into all reaches of public law, from the regulation of a metal trading company (see my recent post here) to care centres and residential homes. Indeed it was in the context of residential home closures that the modern law got worked out. In the 1992 case of ex parte Baker, there had been a draft community care plan which had made no reference to the closure of individual homes, and which was followed up by a bolt from the blue – residents of one home only had 5 days’ notice that their home was to close.
In none of these cases is there a statutory duty to consult – it is an aspect of common law fairness.
The LH case concerns the closure of an adult care day centre. The question in LH was how to apply the principles in Baker to a rather more nuanced consultation approach, where closure of day centres in general was raised in consultation, but the closure of the specific day centre (Hartleys) was not.
In May 2012, the Home Secretary announced a review of the Public Sector Equality Duty (PSED), which came into force a year earlier in April 2011, as an outcome of the Red Tape Challenge. The review is focusing in particular on levels of understanding of the PSED and guidance, the costs and benefits of the duty, how organisations are managing legal risk and ensuring compliance with the duty and what changes, if any, would secure better equality outcomes. It is being overseen by a steering group, appointed by Government Ministers, largely drawn from public authorities.
The Review has recently launched a call for evidence, with a closing date of 12th April 2013. The call is particularly interested in ‘equalities paperwork and policies related to PSED (particularly in relation to public sector procurement processes) and the collection, retention and use of diversity data by public bodies, for example, in relation to goods, facilities and services.’
The Equality and Diversity Forum has produced a helpful briefing on the Review.
It is fashionable at the moment to speak about ‘evidence-based’ policy. The concept has been imported from the sciences by advocates such as Dr Ben Goldacre. In short, policies should be based on empirical evidence, statistics and perhaps even randomised trials. Very sensible. So sensible, you would hope that Government has been doing it anyway.
The Supreme Court has given important guidance as to when eviction from local authority housing amounts to a breach of a tenant’s human rights. It has also confirmed that courts should have the power to consider the proportionality of previously automatic possession orders relating to council properties.
The judgment forms a double act with the recent decision in Manchester City Council (Respondent) v Pinnock (Appellant), a path-breaking ruling in which the Supreme Court held that Article 8 of the European Convention on Human Rights (the right to private and family life) requires that a court, when asked by a local authority to make an order for possession of a person’s home, must have the power to assess the proportionality of making the order (see Nearly Legal’s excellent discussion of that decision).
Desmond v The Chief Constable of Nottinghamshire Police 2011] EWCA Civ 3 (12 January 2011)- Read judgment
The Court of Appeal has ruled that it is not possible to sue the police in negligence for not filling in an Enhanced Criminal Record Certificate (ECRC). The ruling shows that the courts are still reluctant to allow negligence claims against the police, and provides useful guidance as to the duty of care of public authorities towards the general public.
Vincent Desmond was arrested in 2001 for a late-night sexual assault in Nottingham. He denied the crime, and a week later the police decided to take no action against him. When closing the file, a detective constable wrote in his notebook “It is apparent Desmond is not responsible for the crime. The complainant visited and cannot state for certain if Desmond is responsible.”
Updated | The Select Committee on the Constitution has published its report on the Public Bodies Bill, and has expressed concern that the Bill as proposed will impose “Henry VIII” powers on the Executive.
The Bill, which has already attracted attention for seeking to abolish 192 quangos, is currently making its way through Parliament (track its progress here) and has its second reading in the Lords on Tuesday 9th November. You can watch a recording of the debate here. The committee reports:
When assessing a proposal in a Bill that fresh Henry VIII powers be conferred, we have argued that the issues are ‘whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill and, if so, whether there are adequate procedural safeguards’. In our view, the Public Bodies Bill [HL] fails both tests.
Updated | Manchester City Council (Respondent) v Pinnock (Appellant) [2010] UKSC 45 On appeal from the Court of Appeal [2009] EWCA Civ 852 – Read judgment / press summary
The following is based on the Supreme Court press summary. Our full case comment is to follow.
The Supreme Court has ruled that Article 8 of the European Convention on Human Rights (the right to family life) requires that a court, when asked by a local authority to make an order for possession of a person’s home, must have the power to assess the proportionality of making the order.
The 9-strong court departed from a series of House of Lords (its predecessor’s) decisions in order to follow a strong line of European Court of Human Rights authority (summarised at para 45 of the decision). The judgment was unanimous, and follows the important recent decision of the European court in Kay and Others v United Kingdom (see our post), as well as that in Connors v UKand others. The decision represents a welcome clarification of the rights of council tenants facing eviction, following a long and tortuous line of conflicting decisions from both the UK and European courts.
Sharon Shoesmith’s court action over her sacking by Haringey Council has once more brought to the fore the sorry account of neglect and mismanagement by police and local authorities of that led to the death of baby Peter Connelly (‘Baby P’). It has also, however, highlighted the increasingly significant role of courts in the UK and Europe in holding public and private authorities to account in claims involving allegations of child abuse.
It is not just local authorities that are under pressure. Allegations of sexual abuse by members of the Catholic church rumble on, occasionally erupting into well publicised court dramas. For example, the recent groundbreaking claim brought against a Catholic priest, Father Clonan, relating to events in Coventry in around 1976 (MAGA v The Trustees Of The Birmingham Archdiocese Of The Roman Catholic Church [2010] EWCA Civ 256).
The claimant (MAGA) was at the time a child of 12 with learning disabilities. The High Court had ruled that the Church was not liable for the abuse as MAGA was not a Roman Catholic, and as such Father Clonan had no business having any dealings with him and was not doing so in his capacity as a priest. MAGA succeeded on appeal because the Court of Appeal accepted that a priest’s duties are very wide, and involve him befriending non-Catholics, such as in the course of his evangelising role.
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