public law toolkit - melanie carter

PUBLIC LAW TOOLKIT

Melanie Carter

14 October 2010

What is in your public law toolkit?

Non-legal action: using complaints procedures, ombudsmen, external auditors, Scrutiny Committee and/or the Monitoring Officer (local authority decisions)

Legal action: judicial review, statutory appeals

Human rights

Judicial Review – the basics

Can only threaten judicial review including a human rights challenge against a public authority ‘Core’ public authorities ‘Hybrid’ public authorities

Deadlines Pre-action protocol letter Permission – substantive hearing

Judicial Review – the basics (cont.)

JR is a remedy of last resort Funding your case Costs Nature of Judicial Review: Judicial Review

is not a full reconsideration of the decision Don’t clutter the case with particularly weak

or duplicative grounds

Grounds

Error of law Error of fact – “misunderstanding or ignorance of

an established and relevant fact” Improper delegation or fettering of powers and

duties

Grounds (cont.)

Bad faith and improper purpose

Inconsistency

Relevancy/irrelevancy

Unreasonableness

Grounds (cont.)

Substantive unfairness and breach of legitimate expectation The public body has made clear unambiguous

and unqualified representation that it will act in a particular way

The person or body concerned has acted on that expectation to their detriment, and

There is no overriding public interest justifying the decision not to honour that legitimate expectation

Grounds (cont.)

Procedural impropriety occurs when there has been a breach of the common law principles of procedural fairness or where there has been a failure to comply with a statutory procedural obligation

BiasThe key test is whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger that the decision-maker was biased.

Grounds (cont.)

Notice and details of the opposing case

The opportunity to put forward one’s own case properly

Fairness as between opposing parties

Reasons for decisions

Human Rights

Time limits (3 months/one year) Who can bring a claim (victim) Remedies

Quashing secondary legislation Declaration of Incompatibility Damages

Human Rights (cont.)

The right to life (Article 2) The right not to be tortured or treated in an inhuman or

degrading way (Article 3) The right to be free from slavery or forced labour (Article 4) The right to liberty (Article 5) The right to a fair trial (Article 6) The right to no punishment without law (Article 7) The right to respect for private and family life, home and

correspondence (Article 8) The right to freedom of thought, conscience and religion

(Article 9)

Human Rights (cont.)

The right to freedom of expression (Article 10) The right to freedom of assembly and association (Article

11) The right to marry and found a family (Article 12) The right not to be discriminated against in relation to any of

the rights contained in the European Convention (Article 14) The right to peaceful enjoyment of possessions (Article I of

Protocol I) The right to education (Article 2 of Protocol 1) The right to free elections (Article 3 of Protocol 1)

Human Rights (cont.)

Human rights argument may be persuasive, not decisive

R (on the application of Ghai) v Newcastle City Council (Ramgharia Gurdwara, Hitchin & Others intervening)

British Institute of Human Rights Act – Changing Lives

Protecting human dignity

Learning disabled man provided with inadequate accommodation (Article 3 and 8)

Older woman strapped into her wheelchair against her wishes (Article 3)

Challenging discrimination

Non-English speakers sectioned without an interpreter (Article 5 and 14)

A woman being told she could not volunteer at a local school because she is a transgender person

Promoting participation

Disabled man denied support to attend gay pub (Article 8 and 14)

Children in hospital not having any other form of structured interaction with each other beyond one hour of teaching per week

Challenging brutality

Parents banned from visiting their son after complaining about bruising on his body (Article 3 and 8)

Mental health patient restrained in a painful manner (Article 3)

Taking positive steps to protect human rights

Securing extra support for a woman with suicidal tendencies (Article 2)

Transport assistance secured for man with mental health problems (Article 2 and 8)

Using human rights where resources are an issue

Children denied visits to their mother (Article 8)

Older couple split up by local authority after 65 years of marriage (Article 8)

Using human rights to challenge blanket policies

Challenging the blanket use of tilt-back chairs in a nursing home (Article 3 and 8)

Mother threatened with eviction whilst giving birth (Article 3)

Protecting human rights in the context of contracted out services

Learning disabled man searched by care home staff each time he returns from being out unsupervised (Article 8)

Residential care home refuses to bathe larger woman (Article 3 and 8)

Using human rights to support family and private life

Woman fleeing domestic violence able to prevent her children being taken into foster care (Article 8)

Stopping dawn raids at an accommodation facility for asylum seekers (Article 8)

Fair procedures

Mental health patient voluntarily admitted to hospital unable to leave the ward (Article 5)

Other remedies

Complaints Local authorities: Monitoring

Officer/Scrutiny Committee/External Auditors

Ombudsman schemes

Managing disputes with a public body

Gather information Analyse the problem Prepare your evidence Decide tactics

Melanie CarterBates Wells & Braithwaite London LLP2-6 Cannon StreetLondon EC4M 6YH : 020 7551 7610Email: m.carter@bwbllp.com