public law toolkit - melanie carter
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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: [email protected]