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Judicial Review Wednesday, 22nd February 2017

Jonathan Griffiths - Geldards LLP

Virginia Cooper – Bevan Brittan LLP


Advanced Seminar:

Judicial Review

Jonathan Griffiths

Partner, Geldards LLP


Part 1: A brief review of the

basic Judicial Review principles


• What is Judicial Review?

“the process by which the High Court exercises its

supervisory jurisdiction over the proceedings and

decisions of inferior courts, tribunals and other bodies

or persons who carry out quasi-judicial functions or

who are charged with the performance of public acts

and duties.”

Lord Diplock, Council of Civil Service Union v the Minister

for the Civil Service

Background


• It differs from an appeal

“Judicial Review is concerned not with reviewing the

merits of the decision in respect of which the application

for judicial review is made, but the decision making

process itself.”

Lord Brightman, Chief Constable of the North Wales Police Force

v Evans

Background


• CPR 54(1) 2(a) – a “claim for judicial review” means

a claim to review the lawfulness of an enactment; or

a decision, action or failure to act in relation to the

exercise of a public function

• Reviewable bodies

– those who exercise a public function

• Reviewable actions

– not every decision or action of a public body will be a

public function susceptible to judicial review. There

must be a public law element

Scope


• A remedy of last resort – alternative mechanisms for redress (such as an appeal

procedure) should generally first be exhausted

• Standing – a claimant must have a sufficient interest in the matter to

which the claim relates

• Timing – a claim must be filed promptly and in any event no later

than 3 months after the grounds to make the claim first

arose –CPR 54.5(1). The time limits may not

be extended by agreement of the parties

NB Procurement and Planning cases

Scope


Illegality

• The Courts will intervene to ensure that the powers of

public decision-making bodies are exercised lawfully

• Such a body will not act lawfully if for example it acts in

– Excess of Power - acting outside the limits of its

jurisdiction or otherwise outside its powers (i.e. acting

ultra vires)

• Imperial Tobacco v Sec of State for Health

Grounds


– Abuse of Power - pursuing an objective other than that

for which the power to make the decision was conferred

• Municipal Council of Sydney v Campbell

– Error of law – where a decision or action is founded on

an incorrect interpretation of the law e.g. the

misinterpretation of a statute

– Unauthorised delegation of powers – where a power is

given to someone by statute, it cannot be delegated to

someone else unless there are express or implied

powers to do so

• e.g. Vine v National Dock Labour Board

Grounds


– Where acting -

• in bad faith – where a decision is taken dishonestly or

maliciously; or

• for an improper purpose – exercising a discretionary power

for a purpose alien to that for which it was granted

– e.g. Porter v Magill

Grounds


A failure to exercise a discretion

• Acting as if a discretion is fettered, such as the rigid

application of an adopted policy, rather than a

consideration of each case on its merits - e.g. Corrie v London County Council

Irrationality & unreasonableness


• Wednesbury “unreasonableness” – “a decision so

unreasonable that no authority could ever have come

to it”. A high threshold test

• When exercising a discretion, a decision maker should

only take relevant factors into account and not consider

irrelevant matters

– relevant considerations are sometimes set out in the

governing statute

– e.g. Shell v Lewisham

– e.g. Fewings v Somerset County Council

– The flaw must have been material

Abuse of discretion


• This covers a range of procedural standards including:

– a failure to observe statutory provisions or procedural

rules

– a failure to observe the principles of Natural Justice

• the rule against bias either actual or apparent

• the right to a fair hearing

– including prior notice of the process and the allegations; and

– a right to be heard

Procedural Impropriety &

Unfairness


− the duty to give reasons

• no general duty to give reasons for an administrative

decision but there are substantial exceptions

• any reasons given must be intelligible and adequate

Procedural Impropriety &

Unfairness


• Where a public decision-maker changes, or proposes

to change an existing policy or practice and there is

an expectation that the body will act in a certain way

• “where a public authority has made a promise or

some other commitment which represents how it

proposes to act in the future, the law will require the

promise to be honoured unless there is an overriding

public interest in not doing so and it is proportionate

having regard to a legitimate aim pursued in the public

interest”

Lord Woolf, Coughlan v North and East Devon Health

Authority

Legitimate expectation


• It can arise from an express promise, an implied

representation, consistent past practice, or from a

policy

• The representation must be clear, unambiguous and

unqualified; be entitled to be relied upon; and be relied

on to the claimant’s detriment

• Contrast

– a procedural legitimate expectation - an opportunity to

comment

– a substantive legitimate expectation – an

enforceable expectation of a substantive benefit



• Procedural Legitimate expectation

– e.g. Bhatt Murphy v Independent Assessor

• “The paradigm case arises where a public authority has

provided an unequivocal assurance, whether by means of

an express promise or an established practice, that it will

give notice or embark upon consultation before it changes

an existing substantive policy.”

• “the court will not allow the decision maker to effect the

proposed change without notice or consultation, unless the

want of notice or consultation is justified by the force of an

overriding legal duty owed by the decision

maker, or other countervailing public interest

such as the imperative of national security.”



• Substantive legitimate expectation

– “A Substantive legitimate expectation constitutes a

specific undertaking, directed at a particular individual or

group, by which the relevant policy’s continuance is

assured”. Withdrawal would be “conduct equivalent to a

breach of contract or representation”. Laws LJ, Bhatt

Murphy

– e.g. Coughlan, where a chronically ill tetraplegic had

been assured of a home for life at Mardon House

– the class is likely to be small



Human Rights Act 1998


The following remedies are discretionary

• Remedies specific to judicial review proceedings

– Quashing order

– Prohibition order

– Mandatory order

• Other general remedies are available

– Declaration

– Injunction

– Damages

Remedies


Part 2: Consultation


The application of the duty of fairness is extremely case-

sensitive

“Judgments are not to be construed as though they were

enactments of general application, and the extent to

which judicial dicta are a response to the particular

factual matrix of the case under consideration must

always be born in mind”.

Sullivan J, Greenpeace v Secretary of State for Trade

and Industry

Consultation overview


• When to consult

• How to consult

• Specific issues arising in recent consultation cases

– Discarded alternative options

• Q&A

Consultation overview


Express statutory requirement

• e.g. Moseley v Haringey


• It can arise from

– a promise or representation that consultation will take

place

– a course of practice

When to consult


A promise or representation

• Silus Investments v Hounslow

– “…the Defendant’s representation on its website that

there would be a consultation on the proper designation

gave rise to a legitimate expectation to those affected

including the Claimant, that they would be consulted.....”

A course of dealing

• Unilever v IRC

When to consult


• Although an adaptable concept, it should be rare that

fairness requires consultation in the absence of an

express duty or a legitimate expectation

• It can arise where the absence of consultation would

be

– an abuse of power

– a failure of good administration

– a lack of straightforward dealing

Fairness


Luton v the Secretary of State for Education

• Concerned the abrupt termination of funding for the

“Building Schools for the Future” project by the new

Secretary of State following the general election of May

2010

Examples of the Fairness Test


Luton v the Secretary of State for Education

• “..the way in which the Secretary of State abruptly

stopped the projects in relation to which…..approval

had already been given … without any prior

consultation with the five claimants, must be

characterised as being so unfair as to amount to an

abuse of power. However pressing the economic

problems, there was no “overriding public interest”

which …. justifies the lack of any consultation…..”



L&P v Warwickshire County Council

• “This case was an example of a budget being regularly

and constitutionally set by a local authority in the

present time of austerity. All democratic procedure and

safeguards were followed. It simply cannot be said that

to make that decision without prior consultation was so

conspicuously unfair as to amount to an abuse of

power.”



L&P v Warwickshire County Council

• “I have explained that cases falling within category (iii)

[unfairness] will be rare” “I cannot conclude that this

case comes remotely close to conspicuous unfairness

amounting to an abuse of power as was so obviously

present in the Luton case.”



Gunning v Brent

• Consultation must take place when the proposal is still

at a formative stage

• Sufficient reasons must be put forward for the

proposals to allow those consulted to give an intelligent

response

• Adequate time must be given for consideration and

response

• The product of the consultation must be

conscientiously taken into account

How to Consult: Basic

Requirements


The Gunning principles (or Sedley criteria) have

subsequently been approved by

• the Court of Appeal, in Coughlan v North and East

Devon Health Authority

• the Supreme Court in Moseley v Haringey - “The time

has come for this court also to endorse the Sedley

criteria”. “It is hard to see how any..[of the 4

requirements].. could be rejected or indeed improved”

How to Consult


Coughlan

• Whether or not consultation is a legal requirement, if it

is embarked upon it must be carried out properly

• Consultation is not litigation

• The consultation process was open to criticism but was

not unlawful

Other established principles pre

Moseley


Sullivan J in

• Greenpeace v the Secretary of State for Trade and

Industry - the test is not whether something went

wrong but whether “something went clearly and

radically wrong”

• JL and AT Beard v the Environment Agency - “whether

the process was so unfair as to be unlawful.”


Moseley


Vale of Glamorgan v Lord Chancellor

• “Consultation is not negotiation. It is a process within

which a decision maker at a formative stage in the

decision making process invites representations on

one or more possible courses of action.”


Moseley


Case Studies (See Handout)


The historic position Vale of Glamorgan v Lord

Chancellor

• “there is no general principle that a [minister] must

consult on all the possible alternative ways in which a

specific objective might arguably be capable of being

achieved. It would make the process of consultation

inordinately complex and time consuming if that were

so.”

• earlier cases ( e.g. Medway) where other possible

proposals should have been consulted on

were described as “exceptional”

Consultation on discarded

options


United Company Rusal Plc v London Metal Exchange

• “The courts have to allow the consultant body a wide

degree of discretion as to the options on which to

consult”

• “The [common law] duty to provide sufficient

information does not extend to providing options or

information about proposals which it is not making

unless there are very specific reasons to do so.”


options


• “It would considerably increase the burden for

consultant bodies if they had to consult on all the

options which they were not advancing.”

• “In my judgment, the case law shows that the

explanation provided by a consultant body in its

consultation document is not unfair unless something

material has been omitted or something has been

materially misstated.”


options


• A statutory duty to consult on the Council’s draft

scheme to address the abolition of the national

mechanism by which Council Tax Benefits were

provided

• Each Council was required to put in place a local

scheme, known as Council Tax Reduction Schemes to

provide financial assistance to those previously in

receipt of CTB

The Supreme Court view -

Moseley v Haringey


• The Council’s consultation was limited to a proposal to

cut support in line with the cut in government funding

and the options that followed. No reference was made

to the alternatives of:

– Increasing Council Tax

– Reducing spending

– Deploying capital reserves


Moseley v Haringey


• “At present the government gives us the money we

need to fund Council Tax Benefit in Haringey. We will

receive much less money for the new scheme… This

means that the introduction of a Local Council Tax

Reduction Scheme in Haringey will directly affect the

assistance provided to anyone below pensionable age

that currently involves council tax benefit.”


Moseley v Haringey


• By presenting a cut in support as the inevitable

consequence of the funding cut, Haringey’s choice not

to account for the shortfall in other ways was disguised

• The alternatives were not obvious and even if they

were, the reasons for their rejection were not

• The consultation document was misleading and the

consultation was unfair


Moseley v Haringey


• Lord Wilson – the starting point (regardless of the

origin of the duty to consult) is the common law duty of

procedural fairness

• “Sometimes, particularly when statute does not limit

the subject of the requisite consultation to the preferred

option, fairness will require that interested persons be

consulted not only upon the preferred options but also

upon arguable yet discarded alternative options….even

when the subject of the requisite consultation is limited

to the preferred option, fairness may nevertheless

require passing reference to be made to

arguable yet discarded alternative options”

Different approaches


• Lord Reed – focused on the statutory context and

purpose of the duty to consult, which can vary greatly

from one statutory context to another

– The context in this case aimed at public participation in

the decision

– The consequence was a requirement for a wide ranging

consultation to enable the public to make an intelligent

response. This meant a requirement to provide

alternatives to the preferred option



• Other points identified by Lord Wilson from earlier

cases

– The identity of the consultees is important. The

economically disadvantaged may need a presentation

with more specificity. Consultees with specialist

knowledge may require less detailed knowledge than

members of the public

– The demands of fairness are likely to be higher when an

authority contemplates depriving someone of an existing

benefit or advantage than where the claimant

is a bare applicant for a future benefit



Has Moseley changed the legal landscape on

consultation?

• Has it fundamentally altered how consultation

exercises should be carried out in the future?

• When and in what circumstances must a public

authority consult on alternative proposals which it has

rejected?

• Does it require at least passing reference to discarded

alternatives in most cases and the reasons for

their rejection?

• Moseley v Rusal

A change in approach?


Cases Since Moseley


• A decision to cease the direct provision of transport to

day centres for adults with severe learning disabilities.

There was a legitimate expectation of consultation. The

claimant asserted that the consultation documents

were materially misleading and unlawful

• There was no evidence that consultees had been

misled which was the case in Moseley. The challenge

failed as the process overall had been fair

Robson v Salford City Council


• “the decision in Moseley is largely an endorsement at

Supreme Court level of principles already established

at the level of the Court of Appeal …..”

• “In Moseley the consultation material conveyed a

positively misleading impression that other options

were irrelevant. There is nothing equivalent to that in

this case.”

• “What Lord Reed said in Moseley about the importance

of public participation was in the context of the

particular statutory duty to consult, whereas

there was no such duty here.”

Robson v Salford City Council


• The budget for social care services for disabled

children was cut

• It was alleged that the Council had acted unlawfully in

not consulting on its savings targets

• The claim failed as

– (a) it was brought out of time; and

– (b) it was not “conspicuously unfair” not to consult

L&P v Warwickshire County

Council


• Lord Reed (in Moseley) “was saying that for this

particular statutory consultation, the legislative

intention was that the people should in a meaningful

way “participate” in the decision making process. That

is a long way from what the common law is doing when

it imposes a duty to consult. Rather, it is imposing a

requirement that the decision-making process is fair

not that the consultees should (at least up to a point)

actually be decision-makers as well.”

• Whether something had gone “clearly and

radically wrong” remained the test post

Moseley


Council


• “The decision to set a local authority budget at a

certain level and to make reductions in certain areas

must surely be the very quintessence of a political

decision. A challenge to a budget proposal should

normally be made through elected representatives…

That is what local democracy is all about. The main

challenge here does to my mind raise a serious

constitutional question.”


Council


• Hard decisions on cuts do not make them unlawful.

“That does not mean of course that every political

decision is free from challenge in judicial review

proceedings. It does mean however that that I must be

especially careful not to cross the line into the political

arena and get lulled into making a judgment about the

merits of a democratic decision which imposes a cut”.


Council


• The Council failed to comply with 3 of the Gunning

principles

– “The summary and details given were too brief and

superficial to provide for a meaningful consultation.”

– “The seven day period from 19 to 27 August was too

short, especially during a period of the year when many

people are away”

– “The product of the consultation was not “conscientiously

taken into account”.

Silus Investments v Hounslow


• Consultation on the Council’s proposal to cut its adult

social care budget. It was alleged that the council had

failed to provide adequate alternatives to the proposal

– The issue was whether the defendant was under a

common law duty to include information about realistic

alternative options. The claim failed

T v Trafford MBC


– “It cannot be the case that if an authority does not

consult on rejected options, and only presents a

preferred option for consultation, then that must be

misleading. It is one thing to positively mislead as in

Moseley. It is quite another for the Council… to put

forward a point of view that…. It was not realistic to

….increase council tax or use reserves and therefore to

focus the consultation on savings in service.”

– On the proper interpretation of Moseley, it is only

sometimes that fairness will require consultation on

arguable yet discarded alternative options

T v Trafford MBC


• Was Mostyn J correct to say that Sullivan J’s test of

whether “something has gone clearly and radically

wrong”, survives the decision in Moseley? N.B. Baird

T v Trafford MBC


• A decision to cease funding free nursery education,

following a comprehensive review of Council services

with a view to balancing its budget

– It was argued that Moseley established a general

proposition that it is necessary to invite views on possible

alternatives so as to enable an intelligent response. The

consultation had not done so and was therefore unlawful.

The challenge failed

– “There is no inviolable rule established by Moseley that

alternatives have to be consulted upon in every

consultation exercise.”

Morris v RCT


• “Sometimes fairness might require [consultation on

alternatives] so that consultees could make sense of

the consultation exercise. When that is the case the

alternatives will have to be realistic alternatives

• The alternative in this case was simply not to cut

nursery education. That option had been put to

consultees

• “It is not an error to consult on a preferred option, if it

clear from the materials provided how and why that

option has been devised.”

Morris v RCT


• There was an expansion to the original consultation

process following the successful judicial review

challenge by Mr Draper in 2014

• The first claim focused (in part) on Gunning 1, whereas

this challenge focused on Gunning 2, in that it was

claimed that the consultation did not adequately deal

with any alternative proposals

Draper v Lincolnshire CC


• The challenge failed

– “Any such consultation document has to achieve an

acceptable minimum standard; it is not a counsel of

perfection.”

– The consultation document made it clear that it should

be read with the earlier documents, responses and

report; links were provided to earlier documents; and

even though there was a preferred option, alternatives

would be considered. The second consultation in

conjunction with the earlier material achieved the

“acceptable minimum standard.”

Draper v Lincolnshire CC


• The case concerned a review of the Council’s library

services and specifically whether Rhoose Library

should become a community-led library having been a

“village” library

• It was alleged that the consultation process had been

unfair, as consultees should have been consulted on

alternative options

Tilley v Vale of Glamorgan Council


• The challenge failed

– “Whether there is any obligation to consult on

alternatives will depend on the facts of the case in hand,

and, in particular, on whether there are any realistic

alternatives.”

– “It is clear from …. Lord Reed’s judgment that in some

cases there will be no obligation to consult on

alternatives; and even when such an obligation does

arise, it may not require an authority to discuss

alternatives in detail, or the reasons why they

have been rejected.”



– “This was, therefore, a very different case on its facts to

Moseley. None of the choices made by the Council in

this case was disguised. The choices were evident from

the consultation document and from the review.”



• A proposal in relation to changes to acute hospital care

in Greater Manchester. There was a statutory duty to

consult

• The challenge failed as the consultation had met the

legal requirement

• “Following Lord Reed in Moseley, the starting point

must be, what was the purpose of the statutory duty?”

– “At one end of the spectrum a consultation could perform

the function of a referendum, or an exercise in direct

democracy, determining the decision for the

public body through a popular vote.”

Keep Wythenshawe Special v

NHS Central Manchester


– “At the other end of the spectrum the purpose of the

consultation may simply be to elicit views about a

proposal to which regard will be had as an influence on

the decision but which (even if it produced an

overwhelming majority of opinion opposed to the

authority’s proposal) could not be binding on the

authority.”

Keep Wythenshawe Special v

NHS Central Manchester


• Edwards v Flintshire CC

• West Berkshire DC v Secretary of State for

Communities

– Change of policy on affordable housing

– Was sufficient information provided for intelligent

consideration?

– Did Secretary of State give consideration to the product

of the consultation?

Recent Cases


• Friends of Finsbury Park v Haringey LBC

• Jones v Denbighshire CC

• Derbyshire CC v Barnsley, Doncaster, Rotterham and

Sheffield Combined Authority

Recent Cases


Consulting on Alternative Options

• There is no general rule that alternative options must

be consulted upon. If there were, the process of

consultation would be inordinately complex and time

consuming

• It is not an error to consult on a preferred option, if it is

clear how and why that option has been devised

Conclusions


• It may be necessary to make passing reference to

discarded alternative options

• In reviewing these issues consider:

– Who is being consulted?

– Is anyone being deprived of a benefit?

– Sometimes a reference to the alternatives will be needed

to enable consultees to make sense of the consultation

– Would a failure to consult on or refer to alternatives

create a misleading impression? Are any of the choices

disguised? Only realistic alternatives have to

be considered

Conclusions


– Is the duty to consult a statutory requirement? If so, what

does the statue require? Is the requirement to elicit

views, require participation or a local referendum?

– If a common law duty to consult, sometimes fairness will

exceptionally require that alternative options must be

consulted on, and whether it does turns on the facts

• NB a fairness test is open ended which gives considerable

leeway to Judges. It would be advisable to structure a

consultation with more care, when the subject matter is

likely to prove particularly controversial

Conclusions


– See Government Guidance 2016

– Statistics

Practical Considerations


Q&A

Advanced Seminar:

Judicial Review

Virginia Cooper

Bevan Brittan LLP

Part 3: Equalities and Human

Rights


Equality Act 2010

• Consolidating anti-discrimination legislation

• Former duties to have regard to the need to

promote equality replaced by PSED

• Extension of protected characteristics to:

– Age

– Gender reassignment

– Pregnancy/maternity

– Religion/belief

– Sexual orientation


Public Sector Equality Duty

• Section 149, Equality Act 2010:

A public authority must, in the exercise of its functions,

have regard to the need to:

(a) Eliminate discrimination, harassment, victimisation;

(b) Advance the equality of opportunity between persons

who share a protected characteristic and those who

do not share it; and

(c) Foster good relations between persons who share a

protected characteristic and those who do not share

it.


R (Elias) v SoS for Defence

“It is clear that the purpose of [section 71] to require

public bodies to whom that provision applies to give

advance consideration to issues of [race] discrimination

before making any policy decision that may be affected

by them. This is a salutary requirement, and this

provision must be seen as an integral and important part

of the mechanisms for ensuring the fulfilment of the aims

of anti-discrimination legislation.” (emphasis added)

- Per Arden LJ


Predecessor duties

• Section 71, Race Relations Act 1976

• Section 49A, Disability Discrimination Act 1995

• Section 76A, Sex Discrimination Act 1975


Bodies subject to the PSED

• Public authorities

As listed in Schedule 19, Equality Act 2010:

Ministers; Government departments; local

authorities; NHS Trust; governing bodies of

maintained schools and further/higher education

institutions; certain regulatory bodies; chief

constables; and the armed forces amongst others


Bodies subject to the PSED

• Persons who are not public authorities but

who exercise public functions

Public Function

A function of a public nature for the purposes of the

Human Rights Act 1998…

Duty

PSED only applies to the exercise of such public

functions (and not any other functions)


Scope

• “in the exercise of its functions”

PSED applies not just to formulation of policies, but

also the application of such policies to an individual

case. The PSED will apply to: (i) the discharge of a

statutory function; (ii) the exercise of a discretion;

and (iii) the carrying out of a common law obligation


Scope

• “A function of a public nature for the purposes of

the Human Rights Act 1998”

– Function is to be taken at its normal meaning

(Pieretti v Enfield LBC [2010])

– It is the nature of the function that matters

rather than the person exercising the function


Scope

• Example factors to consider:

– Is the organisation publicly funded?

– Are the powers being exercised conferred by

legislation?

– Is the organisation providing a public service?

• Is the organisation closely linked to a public

authority?


Scope

Exceptions (Schedule 18, EA 2010)

• Age, race, religion, belief

PSED does not apply to these protected characteristics

in the exercise of certain immigration functions

• Age

PSED does not apply to the characteristic of age for

functions relating to the provision of: (i) education to

children in schools; (ii) benefits, facilities or services to

children in schools; and (iii) accommodation, benefits or

other facilities pursuant to the Children Act 1989


Specific duties

• Duties of public authorities exercising public

functions to publish:

– Equality information demonstrating compliance

– Equality information about employees (if >150

employees)

– Equality objectives to meet the PSED

Equality Act 2010 (Specific Duties) Regulations 2011


Discharging the PSED

• “Due regard”

- that "which is appropriate in all the circumstances"

(See R (Baker) v Secretary of State for

Communities and Local Government [2008])

- what is required in any given context is "fact

sensitive and varies considerably from situation to

situation, time to time and stage to stage."



• R (Brown) v SoS for Work and Pensions [2008]

A public authority must be able to evidence that it

had had regard to the impact of its proposed policy

on equality:

- Proper analysis of all relevant material and an

appreciation of the duty to have due regard

- Not merely a ‘box ticking’ exercise



• R (Brown) v SoS for Work and Pensions [2008]

– PSED is a continuing duty and should be

reconsidered if new information comes to light

– PSED is non-delegable

– PSED should be exercised with rigour and with

an open mind

• Principles confirmed by the Court of Appeal in R

(Domb) v Hammersmith & Fulham LBC [2009]



• Not acceptable for an organisation to say it was

unable to comply with the PSED because it lacked the

evidence on a particular issue

• Consultation

• Protected characteristic representative focus groups

• Obtaining information on the potential impact of the

proposed policy

– Numbers likely to be affected

– Demographics in the area



• Cumulative effect of each aspect of the policy in

addition to the policy as a whole

• Reasons for reaching a conclusion that will stand up

to internal and external scrutiny

• Equality should be considered alongside other factors

(eg, financial considerations). However, a public

authority cannot avoid PSED compliance by claiming

that it lacks the resources to do so

• Whatever course of action is adopted, ensure that the

reasons for doing so are well-documented


Equality Impact Assessments

• No legal obligation to complete an EIA

• But EHRC guidance favours undertaking an

analysis of the effects on equality of a particular

decision (equalities analysis)

• It will be difficult to demonstrate having had ‘due

regard’ to the PSED without evidence of an

equalities analysis, which may be facilitated by an

EIA


Non-compliance with PSED

• Powers may be exercised by the EHRC to:

– Assess compliance (s31, Equality Act 2010)

– Issue a compliance notice (s32, Equality Act

2010) requiring:

• Compliance with duty within 28 days; and

• Information to be provided on steps taken,

or to be taken, to ensure compliance

– Apply to High Court for an order requiring

compliance with a notice



• A failure to comply with the PSED may also be

challenged by way of Judicial Review, e.g:

– R (Elias) v SoS for Defence

– R (Kaur) v Ealing LBC

• Section 30(1), Equality Act 2010:

– The EHRC shall have sufficient standing to

commence or intervene in JR proceedings for

failure to comply with PSED



• Judicial review grounds

– Procedural impropriety

• Failure to have due regard

– Irrationality

• Lawfulness of decisions which emerge from

equalities analysis

• Adequacy of steps taken/information

obtained



• Usual remedy is quashing of the decision in

question

• However, in limited circumstances the remedy

may be restricted to a declaration of non-

compliance where a quashing order would cause

administrative chaos

– See R (Hunt) v North Somerset Council [2013]

where the decision had already been

implemented and budgetary measures taken


Pertinent cases

• R (T) v Sheffield City Council [2013]

- Challenge to SCC’s decision to stop paying subsidies to 20

nurseries

- SCC defended its decision to axe the grant payments as a

consequence of the government's policy change on early years

funding and a redistribution to fund free early years learning

- Although it was not mandatory, SCC had pursued a formal EIA

assessment process in relation to its proposals and prepared

preliminary (and then very detailed) EIA reports for the Cabinet

meeting taking the decision


Pertinent cases

• R (T) v Sheffield City Council [2013]

- The High Court held that SCC had undertaken a thorough and

conscientious assessment process and therefore the claimants’

challenge failed

- Provided the court is satisfied that the local authority has

rigorously considered its duty so that there is an appreciation of

the potential impact of its decision on equality objectives and the

desirability of promoting them, it is for the decision-maker, and

not the courts, to decide how much weight should be given to the

various factors informing the decision


Pertinent cases

• R (Logan) v London Borough of Havering [2015]

- The High Court held that changes to a council tax scheme were

not discriminatory for the purposes of the PSED and Articles 1 of

the First Protocol and 14 of the ECHR.

- However, there had been a failure by the full council to have due

regard to the PSED as not every member of the council had been

provided with a report and accompanying equality impact

assessment looking at the possible adverse impact of the

changes


Pertinent cases


- Reminder to local authorities making decisions about the

importance of ensuring that all decision-makers have had sight of

and had an opportunity to look at key reports and documents

- A failure to have considered such documents will likely result in a

court finding that "due regard" has not been had to the PSED


Pertinent cases


“In my judgment, the EIA was adequate to enable

members who read it to have due regard to the PSED,

but there was insufficient evidence to indicate that the

decision makers had accessed the EIA attached to the

officers' report or had understood the importance of

reading it in order to discharge their statutory obligation.

It is not sufficient to assume that they could have done

so and therefore would have done so.”


Pertinent cases

• Blake v London Borough of Waltham Forest [2014]

- The High Court quashed the London Borough of Waltham

Forest's decision to revoke a licence to operate a soup kitchen in

a particular car park

- The vulnerable group was correctly identified by the Council as

potentially directly affected by the revocation decision

- The Council also correctly assumed that its decision would have

a disproportionately adverse on effect the elderly, the disabled

and other vulnerable people


Pertinent cases

• Blake v London Borough of Waltham Forest [2014]

- However, the Council failed to identify the most likely adverse

impact on the vulnerable group and engage with mitigating

measures (which is that the soup kitchen would close).

- The Council instead examined and assessed a hoped for and

much less serious impact (relocation to a new site). The decision

was accordingly taken without due regard to the PSED

- Reminder that the duty to have regard to the PSED is more than

simply a requirement to have general regard; real thought must

be given to the PSED and its requirements


Pertinent cases

• R (D and S) v Manchester City Council [2012]

- The Claimant alleged the Council had failed to have due regard

to the PSED when reducing its social care budget

- The High Court held the Council identified an adverse impact of

the budget proposal and included specific budget contingency to

ensure that assessed eligible social care needs were met


Pertinent cases

• R (D and S) v Manchester City Council [2012]

- The court also noted that the Council conducted a fair

consultation and drew Members attention to the PSED in the

report on the revenue budget that was before the Members.

Accordingly, the Council’s decision was upheld

- The court suggested that where steps to gather information have

been taken by the decision maker, it will review the sufficiency of

those steps only on irrationality grounds


Pertinent cases

• London Borough of Hackney v Haque [2017]

− Relationship between the PSED and authority's duty under Part

VII Housing Act 1996 to "secure that accommodation is available

for occupation by the applicant"

− The court stated that the concept of due regard was to be

distinguished from a requirement to give the PSED

considerations specific weight. It was not a duty to achieve a

particular result

− The judge was wrong to base his analysis upon a supposed

general principle requiring the reviewing officer to spell out in

express terms reasoning about whether an applicant does or

does not have a protected characteristic, whether the PSED duty

is in play and if so, with what precise effect


Pertinent cases

• London Borough of Hackney v Haque [2017]

− The reviewing officer's analysis showed an appropriate focus on

H's needs, and upon the extent to which the accommodation

reasonably met them, bearing in mind that the PSED attributed

no specific weight to the considerations to which there had to be

due regard, and determined no particular outcome

− “The allocation of scarce resources among those in need of it

calls for tough and, on occasion, heartbreaking decision-making,

but having to say no to those deserving of sympathy by no

means betokens a failure to comply with the PSED.”


Review of PSED

• Review announced in May 2012 to ensure PSED

was operating as intended

• Steering group set up to consider:

– How well the PSED is understood

– Costs and benefits of the PSED

– Management of the legal risk of ensuring

compliance

– Potential changes to ensure better equality

outcomes


Review of PSED

• Steering committee reported in September 2013

that it was unable to agree on the effectiveness of

the PSED and considered it was too early to

make a judgment on the impacts, costs and

benefits of the PSED.

• Subsequent reports published by the EHRC and

House of Lords Select Committee on the status of

equality and impact of the PSED on disabled

persons


European Convention on

Human Rights • Articles

– Right to life (art. 2)

– Prohibition of the use of torture (art. 3)

– Prohibition of slavery and forced labour (art. 4)

– Right to liberty and security (art. 5)

– Right to a fair trial (art. 6)

– Prohibition on retroactive legislation (art. 7)

– Right to respect for private and family life (art.

8)



Human Rights • Articles (cont.)

– Freedom of thought, conscience and religion

(art. 9)

– Freedom of expression (art. 10)

– Freedom of assembly and association (art. 11)

– Right to marry (art. 12)

– Right to an effective remedy (art. 13)

– Prohibition of discrimination (art. 14)



Human Rights • Protocols

– Protection of property (art. 1, protocol 1)

– Right to education (art. 2, protocol 1)

– Right to free elections (art. 3, protocol 1)

– Prohibition of the death penalty (art. 1, protocol

13)



• Incorporates the Convention rights into domestic

law

• Requires public authorities to act in a way which

is compatible with the Convention rights

– Section 6(1), HRA 1998

• An ‘action’ of a public authority, includes a failure

to act

– Section 6(6), HRA 1988


Public authority under the HRA

• Core public authorities are those which provide public functions and

includes:

– Government departments

– Courts and tribunals

– Local authorities

– Police, prison and immigration officers

– Schools

– Ombudsmen

– Public prosecutors

– NHS trusts and hospitals

– Organisations like the ICO and the General Medical Council.


Public authority under the HRA

• Hybrid authorities are private organisations or charities which

carry out public functions. This would include:

– Privatised utilities like water companies, British Gas and

Network Rail

– Companies subcontracted to carry out a public function like a

security company running a private prison

– Housing associations when carrying out some of its functions

as a social landlord

– Private care homes providing care on behalf of the local

authority

– Private hospitals providing care on behalf of the NHS


Public function under the HRA

• No definition in the Human Rights Act.

• The courts will look at a number of things to decide if a private

organisation is a public authority including if it is:

– publicly funded

– supervised by a state regulatory body

– exercising powers given to it by the law

– taking the place of central or local government

– providing a public service

– acting in the public interest

– carrying out coercive powers devolved from the state


When must a public authority

follow the HRA • Core public authorities:

- eg Local Authorities, NHS Trusts, the Police

- Must comply with Convention regardless of the nature of the

function

• Hybrid public authorities:

- e.g. private entities carrying out functions of a public nature

- Only required to comply with the Convention when performing

acts of a public nature

YL v Birmingham City Council [2007]



• Exceptions (section 6(2), HRA 1998):

– Authority obliged to act in such a way as a

result of primary legislation

– The act is to apply or to enforce primary

legislation which is itself incompatible with the

Convention


Who can bring a claim

• Claimant/applicant must be generally a victim

– Section 7(3) HRA 1998

– Follows the interpretation of the ECHR

– Normally need to show that the Claimant has

been directly affected by the decision under

challenge or at risk of being affected

• However, the EHRC can bring a claim despite not

itself being a victim

– Section 30, Equality Act 2006


Time Limits

• Within one year of the act complained of

• three months if applicant making an application

for judicial review

• The courts can allow an application outside the

one year time limit if there are good reasons and

it is fair to do so


Human Rights and judicial

review • Sections 7(1) and 7(2) of the HRA require that proceedings are

brought in the appropriate court

• If the only remedy sought is damages then the claim should be

pursued as an ordinary civil matter (CPR 54.3).

• If the individual is seeking a prerogative order and damages

then the JR procedure must be used (CPR 54.2)

• Judicial review is only available where no other route to

challenge exists

• Applicant will still need to show they have sufficient interest, i.e.

that they are the victim of the human rights breach.


Remedies for breach of HRA

and judicial review • Section 8, Human Rights Act 1998

– Most common remedies are financial compensation or

damages

– quashing order, mandatory order or prohibiting order

– Damages may only be awarded by a court that has power to

award damages in civil proceedings

– The court may award damages for a breach of the

HRA/Convention rights where damages are the most

appropriate remedy and such an award is necessary to afford

just satisfaction to the Claimant [section 8(3)]


Pertinent cases

• P and Q v Surrey County Council [2014]

- The Claimants had learning difficulties and lacked

capacity to make decisions about their care

- Sisters placed with a foster carer and in residential

home respectively after being taken into care.

- The lower courts stressed that the living arrangements

provided relative normality

- However, “a gilded cage is still a cage”

- Per Lady Hale [46]


Pertinent cases

• P and Q v Surrey County Council [2014]

- SCC was in breach of the Article 5 right to liberty as

the Claimants were not free to leave

- The Supreme Court clarified that disabled people

cannot be deprived of their liberty without proper

safeguards, even if their living arrangements are

benevolent

- Authorities are now required to regularly check on

whether living arrangements were in the vulnerable

parties’ best interests and meet their needs


Pertinent cases

• Ladele v London Borough of Islington [2013]

- Claimant worked as a register of births, deaths

and marriages for LBI

- L was opposed to same-sex civil partnerships for

religious reasons and refused to conduct civil

partnership ceremonies

- Following disciplinary proceedings, L claimed

against alleged discrimination on the grounds of

her belief (arts. 9 and 14)


Pertinent cases

• Ladele v London Borough of Islington [2013]

- Claim was appealed up to the ECtHR in

Strasbourg

- The ECtHR accepted that there was a detrimental

impact on L and art.14 was engaged

- However, the ECtHR determined that LBI’s

actions were in furtherance of a legitimate

objective and LBI’s actions were within the margin

of appreciation when balancing competing rights

Part 4: Case Law and Rule

Change Update


Reform of Judicial Review

• Criminal Justice and Courts Act 2015 Part 4

• MoJ consultation on Proposals for the provision and use of

financial information – July 2015

• Government response published July 2016, together with

Request for further views on the provision of financial information

to other parties

• Changes to rules setting out the financial information required at

outset of a JR application

• Threshold figure of £1,500 for the disclosure of third party funding

• Detailed financial disclosure when applying for costs capping

order


Consultation on Duty of

Candour • Lord Chief Justice Discussion Paper on

defendant’s duty of candour and disclosure in JR

proceedings

• Proposals to amend CPR 54A:

• Clarify general position governing defendant’s

duty of candour and to ensure it more closely

reflects the existing case law

• Establish procedure for specific directions on the

content of acknowledgement of service filed by a

defendant


Case law on procedure

• Hunt v North Somerset Council - costs

• R (Kigen) v Secretary of State for the Home Department –

extension of time

• R (Save Britain's Heritage) v Liverpool City Council – cross-

examination of witness

• R (Wasif ) v Secretary of State for the Home Department –

“without merit” certification

• Khaled v SoS for the Home Department (No.1) – admission of

expert evidence

• R (Khan) v Secretary of State for the Home Department – duty of

candour

• Camden London Borough Council v Humphreys – failure to

participate in proceedings


Hunt v North Somerset Council

(Sup Ct) • Dismissal of H’s application for JR of the Council's

decision to reduce its youth services budget

• CA ordered H to pay half of the Council's costs of

appeal

• Sup Ct allowed appeal: Where public body had acted

unlawfully but not appropriate to make a mandatory,

prohibitory or quashing order, it would usually be

appropriate to make some form of declaratory order;

simply to dismiss the claim when there had been a

finding of illegality was likely to convey a misleading

impression and to leave the claimant with an

understandable sense of injustice


R (Kigen) v SoS for the Home

Department (CA)

• CA confirmed that application for permission to

apply for JR must be made promptly

• However, granted extension of time

• Refusal of extension of time would impose a

greater prejudice on the appellants than was

justified by the delay


R (Save Britain's Heritage) v

Liverpool City Council (Admin Ct)

• Application to cross-examine Council’s urban

design and heritage manager on impact of

proposed development

• Court allowed the cross examination application,

reserving judgment on whether evidence would

be admissible

• "one of the rare cases where it is in the interests

of justice to allow cross examination"


R (Wasif) v SoS for Home

Department (CA) • Sets out approach that judges should take when

considering whether to certify an application for

permission to apply for judicial review as totally

without merit

• Guidance on difference between cases where

permission is refused on basis that it is "not

arguable" and those that are totally without merit

because bound to fail


Khaled v SoS for the Home

Department (No.1) (Admin Ct) • Considered admissibility of expert evidence in JR

proceedings

• Claimant wanted to adduce evidence from NGO

• Court confirmed that CPR 35 applies to claims for

JR

• Need for formal application and disclosure to

opposite side


R (Khan) v Secretary of State

for the Home Department (CA) • Immigration case

• Court considered what Claimant is required to do

as part of the duty

• Duty is bilateral and continuing

• Claimant cannot simply disclose conflicting

documents - any discrepancy should be brought

to the attention of the court and an explanation

given


Camden LBC v Humphreys

(CA) • JR challenging Parking Adjudicator's decision re penalty charge

notice

• Case considered whether a party which had chosen not to

participate in litigation and had not put its case before the first

instance court should be able appeal against the decision

• Despite receiving claim form almost a year before the grant of

permission, the Council took no steps to participate in the

proceedings and offered no explanation for this

• Court ruled that the Council should not be permitted to contest

the JR application for the first time in the Court of Appeal.

• “In the absence of any explanation, the Council’s passive attitude

to the challenge to the Adjudicator's decision and its total non-

participation in the proceedings below seemed quite

extraordinary”


• Q&A


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