When is a duty not a duty? Interpreting the main homeless duty in Elkundi v Birmingham and Imam v Croydon

Posted on May 16, 2022 by Lois Lane

Housing has been in the news quite a bit over the last few weeks. We have seen the inclusion in the Queen’s Speech of the much-anticipated and long-delayed Social Housing Regulation Bill and Renters’ Reform Bill, aimed at increasing regulatory oversight and improving standards in the social and private rented sectors. The Prime Minister has announced that he is once again considering extending the controversial Right to Buy to England’s two million housing association tenants. Meanwhile, in an interview on Thursday morning, the Levelling Up Secretary, Michael Gove refused to recommit the Government to its 300,000 annual housebuilding target. But amid all the sound and fury, an important judgment was handed down by the Court of Appeal on 4 May in the joined cases of R (Elkundi) v Birmingham City Council and R (Imam) v London Borough of Croydon [2022] EWCA Civ 601, which could have far-reaching implications for local authorities and homeless households across the country.

The two appeals concerned the interpretation and application of s.193(2) Housing Act 1996, known as the ‘main housing duty’, which states that, where an applicant is unintentionally homeless and in priority need, “unless the authority refer the application to another local housing authority, they shall secure that accommodation is available for occupation by the applicant.” Both appeals raised important questions around the extent of this duty and the circumstances in which a local housing authority might be said to have discharged it. The initial claimants all belonged to households which were trapped in unsuitable accommodation at the time the claims were brought, either through overcrowding or a lack of adaptation to meet the needs of disabled family members or both.

In the first appeal in Elkundi, the Judge in the lower court, Mrs Justice Steyn, had held that s.193(2) imposed an “immediate, unqualified and non-deferrable duty” on a local authority to secure accommodation for a homeless applicant [2]. The local authority, Birmingham City Council, appealed on the basis that this was a misreading of the statutory provision. It contended that it was only under a duty to secure that accommodation be made available within a reasonable period of time, the reasonableness of the period being dependent on the circumstances.

Steyn J also held that Birmingham City Council’s misunderstanding of the nature of its duty under s.193(2) rendered the operation of its system for housing homeless applicants in unsuitable accommodation unlawful, since it wrongly considered it had a reasonable time in which to secure them suitable accommodation and could therefore comply with its duty by temporarily leaving them in unsuitable accommodation [61]. She issued a mandatory order requiring Birmingham to secure accommodation for one of the five initial claimants, Mr Ahmed, within 12 weeks and indicated that she would have done the same for Mr Elkundi, had he not already been offered suitable accommodation by the time the case was heard [62–63]. The local authority appealed on four further grounds, relating to the lawfulness of its system for housing homeless applicants and the Judge’s reasons for granting relief to specific claimants. These are set out in the judgment of the Court of Appeal at [70] and summarised at [3], and the conclusions of Lewis LJ on the issues they raise are set out at [109–123]. The main issues raised by the further grounds of appeal were whether Birmingham was operating an unlawful system for housing homeless applicants and whether it is possible for an individual to waive their right to suitable accommodation, once that right has been established.

In the second appeal, the Court considered the circumstances in which mandatory relief might be refused by the courts once a duty to house a homeless applicant in suitable accommodation has been established. The initial claimant, Ms Imam, appealed against the refusal by the Deputy Judge in the court below to grant a mandatory order compelling Croydon Borough Council to comply with its statutory duty under s.193(2) in circumstances where it had already accepted it was in breach of it. The sole ground of appeal here was that this refusal constituted an error in principle.

The extent of the main housing duty

The primary issue upon which the Court had to rule in the first appeal was the extent of the main housing duty. The Court of Appeal unanimously upheld the lower court’s formulation of the duty under s.193(2) as immediate, unqualified and non-deferrable. Speaking at a webinar hosted by Doughty Street Chambers, Zia Nabi, who acted for Mr Elkundi and the other respondents in the first appeal, noted that this judgment effectively reinforces the orthodox interpretation of the statutory provision.[1] Indeed, the Court apparently did not consider this to be an especially complicated or lengthy point. The case advanced by the local authority, that the use of the word “shall” in s.193(2) indicated that “Parliament intended that the authority would make arrangements for the provision of accommodation in the future” [72], would have constituted a radical departure from the existing understanding of the main housing duty had it been accepted. In this context, it is unsurprising that the Court instead preferred to interpret the word “shall” to mean “must” and to refer to an immediate obligation to secure suitable accommodation for eligible applicants, rather than one to be fulfilled in the future [77].

What does this mean for local housing authorities facing major financial challenges or a severe shortage of appropriate housing stock in which to house homeless applicants, especially disabled applicants who require specifically adapted homes to be able to enjoy a good quality of life? Does the immediate and unqualified nature of the main housing duty mean that such factors cannot be taken into consideration by councils or the courts? Well, not exactly. In paragraph 170 of her judgment in the lower court, Steyn J held that:

Interpreting the duty as unqualified does not mean that the circumstances in which the local housing authority is seeking to perform its duty are relegated to be considered only at the relief stage. First, they are taken into account in determining whether a person is homeless under section 175(3) … Second, the flexible concept of suitability imports considerations such as the length of time an applicant has been in a particular type of accommodation and the dearth of availability of the type of accommodation the applicant requires in the longer term.

In his leading judgment in the Court of Appeal, Lewis LJ endorsed this notion of suitability as a flexible concept, which may be influenced by the resources available to the local housing authority and the circumstances of the individual case. Thus, a dearth of alternative accommodation might lead a council to conclude that an applicant’s current accommodation is suitable for continued occupation on a temporary basis, even if it would be unsuitable for them to occupy in the long term. Lewis LJ further clarified that it may sometimes be appropriate and necessary for a local authority to provide an applicant with different accommodation at different times. Permanent accommodation suitable for long-term occupation need not be secured immediately in order to fulfil the duty, though it should be the ultimate goal [81–82]. Where a local housing authority considers that the accommodation currently being occupied is suitable in the short or medium term, but unsuitable in the longer term, they should clearly state this conclusion in their decision letters to homeless applicants [83].

However, once a local authority has accepted that accommodation is unsuitable, it must secure suitable accommodation for the applicant right away. It is not enough to place them on a waiting list for suitable accommodation somewhere down the line. When a decision on unsuitability is reached, a local authority will be in breach of its duty for as long as the applicant remains in their current unsuitable accommodation [83].

The Court declined to rule on whether a local authority can change its mind over whether accommodation is suitable, having initially found it to be unsuitable (dealt with in the judgment as ‘the fourth issue’ [120–123]). Steyn J had expressed the view, obiter, that such a reversal of an initial decision by a local authority would be unlawful. The Court of Appeal judgment noted that Lewis LJ “would not want it to be assumed that the obiter dicta of the Judge are correct” but indicated that this point should be decided in a future case where it actually arises on the facts [121].

Was Birmingham’s system unlawful?

The second issue upon which the Court ruled was the lawfulness or otherwise of Birmingham’s system for housing homeless applicants. Social housing in Birmingham has been at the centre of a number of controversies in recent years, particularly with regard to the level of regulation in the exempt accommodation sector. The council also has an exceptionally long housing waiting list and very few homes available which are suitable for large families or properly adapted for occupation by disabled people. Despite, or perhaps because of, these challenging circumstances, Birmingham lacks a written policy explaining how properties are allocated to homeless persons under Part VII Housing Act 1996 [47]. Neither had it carried out equality impact assessments to demonstrate that it had had regard to the impact of its allocation system on disabled applicants [114]. While neither a written allocation policy nor equality impact assessments are mandatory, both are good practice.

In essence, the system being operated by Birmingham in respect of applicants to whom the main housing duty was owed was to place them on a waiting list known as the ‘Planned Move List’ (PML), along with applicants in “apparent priority need” to whom an interim duty was owed under s.188 Housing Act 1996, and to match them with suitably-sized properties as they became available, according to the length of time they had been on the list [46, 109]. The Court of Appeal upheld the decision of the lower court that this system was unlawful, in that it failed to distinguish between people living in accommodation which was currently unsuitable and those living in accommodation which was suitable in the short or medium term but would become unsuitable in the long term [113]. Moreover, the council was unable to evidence that it had had due regard to its duty under s.149 Equality Act 2010 to eliminate discrimination, advance equality of opportunity, and foster good relations between those who share the protected characteristic of disability and those who do not. [114]

Can the right to suitable accommodation be waived?

The third issue was whether the right to suitable accommodation can be waived, once a local authority has accepted that it owes a duty to an applicant. This point arose because one of the initial claimants in Elkundi, Mr Al-Shameri, had indicated that he preferred to stay in his current accommodation, where his wife had an assured tenancy, while Birmingham looked for suitable accommodation for him. The question was whether this constituted a waiver of his right to suitable accommodation.

The Court dealt with this point fairly briefly. It held that the right can be waived, but only with informed consent of the applicant, who always has the right to change their mind [117]. Lewis LJ recognised that there may be circumstances where a person prefers to remain in their current accommodation until suitable long-term accommodation can be secured for them, especially if the duty owed is an interim one under s.188, if the alternative accommodation would be very temporary (for example bed and breakfast accommodation), and/or if they would have to give up a secure long-term tenancy in order to move into uncertain interim accommodation [116]. It is therefore vital that local authorities take steps to properly ascertain applicants’ wishes and keep them fully informed of their rights and of the outcome if they refuse the offer of suitable accommodation.

Can relief be withheld where the main housing duty is breached?

The fifth issue and the main substance of the second appeal concerned the proper approach of the court to the grant of a mandatory order to compel a local housing authority to secure suitable accommodation for a homeless applicant, once a breach of duty has been established. Ms Imam appealed against the refusal of the Deputy Judge to grant an order mandating that Croydon Council secure suitable accommodation for her, while Birmingham appealed against the grant of a mandatory order on behalf of Mr Ahmed.

In the case of Ms Imam, the Deputy Judge had held that Croydon were doing all they reasonably could to secure suitable accommodation for her, within the context of the general shortage of accommodation in the area and other applicants’ greater levels of need and longer periods waiting for suitable accommodation [67]. He noted in particular that Croydon’s resources were finite. Its estimated budgetary overspend in the current year was £67 million, and indeed readers can hardly fail to have heard about the borough’s financial crisis, which took it to the brink of bankruptcy and recently resulted in its Labour administration losing overall control of the council and the mayoral race to the Conservative candidate.

On appeal, the Claimant submitted that once a local housing authority has accepted that it has a duty, a failure to discharge it is an affront to rule of law and relief must therefore be granted [125]. Croydon stressed that a mandatory order is a discretionary remedy and submitted that the Deputy Judge was entitled to take into account the factors that he did, when deciding whether to grant relief [127].

At the Doughty Street webinar, Martin Westgate QC, who acted for Ms Imam, suggested that the Deputy Judge had incorrectly imported a purported legal test of “intolerability” from Baroness Hale’s judgment in Ali v Birmingham City Council [2009] UKHL 36, [2009]; 1 W.L.R. 1506, even though such a test does not actually exist. The mandatory order had been refused on the basis that Ms Imam had failed to evidence that the conditions in which she was living were having an extremely serious effect on her, or that they were “intolerable” or that “enough was enough” [67]. This was an incorrect approach for two reasons: first, because “intolerability” is not a legal test, and second, because the burden is on the authority to show why an order should not be made once breach is established, rather than on claimant to show why it should be.

The correct approach, per Lewis LJ, was to consider whether the local housing authority has taken “all reasonable steps” to perform the duty [132-134]. Although the judgment does not frame this in terms of a strict legal test, it is the approach taken by the Court in relation to both the Birmingham and Croydon appeals. Breaches of duty under s.193(2) are on a scale of seriousness, and the more serious and significant the breach, the more detailed evidence the local authority will need to provide to demonstrate that it has taken all reasonable steps to remedy the breach and secure suitable accommodation for the applicant. “References to the general difficulties facing housing authorities, or the lack of availability of suitable properties”, without specific details on the number and type of properties available and why they cannot be used, will most likely be insufficient [132]. In both of the present cases, the Court of Appeal held that the local authorities had failed to adduce sufficient evidence to demonstrate that they had taken all reasonable steps to remedy the breaches. Thus a mandatory order was correctly granted in the case of Mr Ahmed and ought to have been granted in the case of Ms Imam [142, 150].

The Court also held that the Deputy Judge in Imam had erred in taking into account budgetary constraints when considering whether a mandatory order was appropriate once the housing authority had accepted that Ms Imam was homeless and her current accommodation was unsuitable, since the decision on unsuitability had already taken into account budgetary considerations [141]. To consider them again at the relief stage would therefore introduce element of double counting. The courts are entitled to take into account a wide range of factors when deciding whether to exercise their discretion to provide mandatory relief, including but not limited to the extent of the unsuitability, the length of time the claimant has been waiting and the impact on their life, the likelihood of compliance in the near future, the risk of unfairness to other applicants, and any policy on the part of the local authority not to use its Part VI housing stock for Part VII purposes [141–144], but general budgetary constraints do not form part of this list.

In some respects, the points dealt with in these appeals seem self-explanatory. The value of this judgment lies not in moving the law on in any dramatic way but in clarifying the expectations on local authorities. The fact that both Birmingham and Croydon were held not to have taken all reasonable steps to house the claimants in suitable accommodation, despite the manifest financial and administrative challenges faced by both in addressing unmet housing need within their local authority areas, demonstrates that the hurdle for avoiding mandatory relief when s.193(2) is breached is very high. Local authorities will need to consider this carefully when assessing suitability and allocating resources to housing applicants once a duty has been established. Clear communication with applicants and careful record keeping will also help them when it comes to demonstrating compliance with their s.193(2) duty. The Court of Appeal refused Birmingham permission to appeal. They may yet apply to the Supreme Court for permission but given the unanimous, clear-cut and forceful nature of this judgment, they seem rather unlikely to succeed.

What I’ve been up to recently…

I hope that readers will forgive the radio silence from your Green and Pleasant bloggers during the month of April. I was preparing for my final Bar exams at the end of last month, while Sam was completing his dissertation. With exams now over, I am very much looking forward to a planned cycle touring holiday to the Outer Hebrides at the beginning of June and desperately hoping for clement weather.

[1] Readers can find further details about the webinar here and can request a copy of the transcript by emailing events@doughtystreet.co.uk.

How to sue an ex-king

Posted on Apr 5, 2022 by Sam Kharabanda Groom

Lois and I have in recent weeks observed that the blog posts that prove most popular are those that provide practical advice to our readership on matters that are likely to arise in their own lives. For this reason, I hope that you will enjoy my short presentation of the decision of the High Court on a preliminary issue in Corinna Zu Sayn-Wittgenstein-Sayn v His Majesty Juan Carlos Alfonso Víctor María De Borbón Y Borbón [2022] EWHC 668 (QB). The case is indispensable for anyone considering bringing a civil claim against a former head of state.

The background

His Majesty Juan Carlos Alfonso Víctor María de Borbón y Borbón-Dos Sicilias reigned as Juan Carlos I, King of Spain, from the death of the dictator Francisco Franco in 1975 until his abdication on 18 June 2014. Since then, his son has ruled as King Felipe VI of Spain, and he himself has been referred to as Rei Emérito, or King Emeritus. He retired from public life in June 2019, and in 2020 he moved from Spain to the United Arab Emirates. He has been married to Princess Sofía of Greece and Denmark, who during her husband’s reign was Queen of Spain, since 1962.

Corinna zu Sayn-Wittgenstein-Sayn met His Majesty in 2004. Her job, at that time, was to organise hunting trips, and His Majesty availed himself of her services. They also began a romantic relationship at about the same time. This lasted until 2009, when, according to Ms zu Sayn-Wittgenstein-Sayn, she refused a proposal of marriage made by His Majesty.

Readers who would like to know more about the relationship between these two individuals can find juicy content all over the Internet: for example, here, here and here.

If you are wondering why we, legal bloggers, are writing about these individuals, it is because, on 16 October 2020, Ms zu Sayn-Wittgenstein-Sayn filed a claim form in England by which she claimed damages and an injunction on the basis of a course of conduct pursued by His Majesty that amounted to harassment of her, contrary to section 1 of the Protection from Harassment Act 1997.

In December 2020, Ms zu Sayn-Wittgenstein-Sayn particularised her claim, alleging that the course of conduct had begun in April 2012 and was still ongoing. The gist of the allegations as set out in the Particulars of Claim is that Ms zu Sayn-Wittgenstein-Sayn was surveilled by the Spanish national intelligence agency and her property searched by them on behalf of His Majesty; that she was threatened and blackmailed by the head of that agency, General Félix Sanz Roldán, on behalf of his Majesty, and made to fear for her and her family’s safety; and that His Majesty spread malicious rumours about her, including to the media, in an attempt to damage her personal and commercial relationships. It is alleged that Ms zu Sayn-Wittgenstein-Sayn was harassed both before and after His Majesty’s abdication in June 2014.

The usual next step in a claim following service of Particulars of Claim is the filing of a Defence, in which the defendant’s response to the substantive claim is set out. However, His Majesty has not filed a Defence. Rather, he has applied for an order declaring that the court has no jurisdiction to try the claim because His Majesty benefits from immunity under sections 1(1), 14 and 20 of the State Immunity Act 1978.

Although there are additional preliminary grounds on which His Majesty challenges the claim, the issue of state immunity was isolated and tried in the High Court before Nicklin J at hearings on 6 and 7 December 2021. Judgment was handed down on 24 March 2022.

The issues and submissions

His Majesty claimed immunity on two bases. First, he claimed that section 14 of the State Immunity Act rendered him immune from suit in respect of any act in his public capacity while he was head of state. This kind of immunity is called immunity ratione materiae, which means immunity by reason of subject-matter. It is immunity that attaches to qualifying acts. Second, His Majesty claimed that section 20 rendered him immune from any suit because he is a sovereign, a member of the King of Spain’s family and household. This kind of immunity is called immunity ratione personae, which means immunity by reason of personality. It is immunity that attaches to a qualifying person. His Majesty therefore made two arguments. First, as a person covered by section 20, he is completely immune from suit in respect of any acts whatsoever. Second, if that is incorrect, section 14 means that he is immune from any acts done in his public capacity as head of state, that is before his abdication. If the first argument succeeded, His Majesty would be immune in respect of Ms zu Sayn-Wittgenstein-Sayn’s entire claim. If the first argument failed but the second succeeded, His Majesty would only be immune in respect of the part of the claim relating to conduct during his reign.

The question in relation to section 20 was whether His Majesty is a “sovereign” or, alternatively, a member of the family of King Felipe “forming part of his household”.

On behalf of His Majesty, Sir Daniel Bethlehem QC submitted that a state may have more than one “sovereign”, and that His Majesty’s unique status as King Emeritus meant that both he and his son were sovereigns. Sir Daniel relied on the travaux préparatoires (preparatory works) to the Vienna Convention on Diplomatic Relations of 1961, to which the State Immunity Act gives effect, to argue for a broad conceptual interpretation of “household”. As a member of the Spanish royal family, His Majesty is part of King Felipe’s household even though he lives abroad and is largely financially independent.

On behalf of Ms zu Sayn-Wittgenstein-Sayn, James Lewis QC submitted that the wording “sovereign or other head of state” in section 20 made it clear that a sovereign is a head of state. If, like His Majesty, one is not a head of state, one is not a sovereign. There is no exception or special category for former heads of state. On the family point, the Court of Appeal in HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud and HRH Prince Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd [2013] EWCA Civ 642, [2014] 1 WLR 492 made clear that the group of “members of [the head of state’s] family forming part of his household” envisioned by section 20 was limited to dependant family members. Since His Majesty is not dependent upon King Felipe, he does not benefit from immunity under section 20.

The question in relation to section 14 was whether any of the alleged acts done in His Majesty’s reign had been done in his official capacity. (It is important to note that, for the purposes of these arguments, the parties treated the allegations as true.)

Sir Daniel relied on Jones v Ministry of the Interior of the Kingdom of Saudi Arabia and another ]2006] UKHL 26, [2007] 1 AC 270 and R (Pinochet Ugarte) v Bow Street Metropolitan Stipendiary Magistrate (No.3) [1999] UKHL 17, [2000] 1 AC 147 in his submission that even a heinous and unlawful act, and even one done to advance a personal agenda, could attract immunity if it was done in the purported discharge of official duties. It was submitted that the alleged acts of His Majesty through General Sanz Roldán and the Spanish national intelligence agency were done in the discharge or purported discharge of His Majesty’s official duties as king.

Mr Lewis relied on a large number of authorities, including Playa Larga (Owners of Cargo lately laden on board) v I Congresso del Partido [1983] 1 AC 244, Kuwait Airways v Iraqi Airways [1995] 1 WLR 1147, Holland v Lampen-Wolfe [2000] UKHL 40, [2000] 1 WLR 1573 and Surkis and others v Poroshenko and another [2021] EWHC 2512 (Comm), in submitting that, when deciding whether an act is done in an official capacity, the judge must ask whether the act, in its context, has the character of a private act, meaning an act that a private person could have performed. Further, the purpose for which the act was performed is not relevant. It was submitted that the alleged acts were in the context of the breakdown of a romantic relationship, which was a private matter, and that any wealthy person could have performed.

The decision

Nicklin J adopted Mr Lewis’s submissions about immunity under section 20 more or less completely. King Felipe is the only sovereign of Spain. The judge noted that, if Sir Daniel were correct that His Majesty continued as a sovereign after his abdication, he would have complete life-long immunity. If he were “to walk into a jewellers’ shop in Hatton Garden and steal a diamond ring, he could face no civil or criminal proceedings in this jurisdiction” [60]. Such a conclusion had no basis in any relevant principles. In respect of the family and household argument, the judge held that he was bound by the Court of Appeal’s decision in Apex to hold that dependence is the key factor in deciding whether someone is part of the head of state’s household. Since his Majesty is not dependent on King Felipe, he is not part of his household.

The section 14 issue was more finely balanced. On the one hand, harassment is not a public act, but an act that any private citizen can perform. On this basis, His Majesty would enjoy no immunity under section 14 in respect of the pleaded course of conduct amounting to harassment. On the other hand, individual acts alleged by Ms zu Sayn-Wittgenstein-Sayn as comprising a course of conduct amounting to harassment could be analysed as official acts attracting immunity. The parties seemed to agree about this. The judge therefore asked which individual acts could be considered as official acts. He singled out the alleged acts involving surveillance of Ms zu Sayn-Wittgenstein-Sayn and interference with her home. However, these allegations presented the problem that it was not clear whether it was Spanish state security agents or private contractors who performed the surveillance. If it was private contractors, there could be no successful immunity argument. If it was Spanish state security agents, immunity would be more arguable. The judge concluded that the pleadings and evidence before him were not clear enough to enable him to decide this question with satisfactory certainty. The burden of proof for establishing immunity being on His Majesty, the present position was that the judge was “very far from convinced that there could be any claim to functional immunity” [72]. On the basis that his decision about section 20 immunity meant that the claim would be proceeding anyway, he held that there was no immunity under section 14, but that, if the Spanish state wished to step forward later in the proceedings and take responsibility for the surveillance of Ms zu Sayn-Wittgenstein-Sayn, the position could be revisited.

The result of all this was that none of His Majesty’s claims of immunity succeeded.

Conclusion: practical take-aways

What can you and I learn from this case as prospective litigants against former heads of state?

First, and most importantly, a former head of state does not benefit from personal immunity under section 20 of the State Immunity Act, no matter their current title. They are not a sovereign. So look at the detail of what your potential defendant has done.

Second, identify ways in which the former head of state acted both unlawfully and in a way accessible, at least in theory, to a private individual. If they felt that their conduct could be perceived as dodgy, they might have tried to pursue it outside official channels. This is good news for you.

Third, engage two silks and two juniors for preliminary issue hearings.

And what about our readers who are former heads of state or considering retirement from that position and who expect to defend proceedings in this country?

First, ideally, stay in post.

Second, possibly counter-intuitively, make sure to use your official resources to conduct any potentially unlawful activity. Acts that no private person could have performed are likely to attract immunity under section 14.

Third, even the best lawyers cannot guarantee victory.

What I’ve been watching this week

From the ridiculous to the sublime. I have been watching Peep Show, which is all on Netflix, and which might be the best sit-com of the noughties.

Split decision in Mozambique gas project challenge

Posted on Mar 23, 2022 by Lois Lane

Back in October last year, I wrote a piece arguing that the UK legal system is ill-equipped to deal with the climate crisis. Citing a number of high-profile legal challenges to carbon-intensive infrastructure projects which have been dismissed over the last few years, I argued that the wide margin of appreciation enjoyed by decision-makers when it comes to translating the UK’s legally binding emissions-reduction targets into actual policy and the reluctance of judges to be seen to be making politicised decisions meant that such challenges are likely to keep failing. Since then, two interesting judgments have been handed down in cases concerning decisions to approve new fossil fuel developments, which have caused me to revisit some of the assertions I made in my previous post on the subject to see whether they still hold true.

First there was the judgment in R (on the application of Finch) v Surrey County Council [2022] EWCA Civ 187. Here, a majority of the Court of Appeal upheld the decision of Holgate J that Surrey County Council’s approval of a new oil well at Horse Hill was lawful, but disagreed that downstream greenhouse gas (GHG) emissions are “legally incapable” of being factored in as an indirect effect of a project for the purposes of its Environmental Impact Assessment (EIA). The court held instead that such emissions should be included where there is a sufficiently close connection between the proposed project and its putative effect, with the existence of such a connection being decided on a case-by-case basis [41, 141]. The majority found that the necessary causal connection was absent in the present case [85]. However, Moylan LJ held that there was a close connection and the decision to exclude end-use emissions from the EIA was therefore legally flawed. In his own words, “it is not difficult to describe the combustion of material obtained from a development whose sole purpose is to obtain that material for combustion as being an environmental effect of the development” [138].

Then, on 15 March last week, there was another split decision in the High Court over the legality of the UK government’s approval of $1.15bn of export credit finance for a huge liquified natural gas (LNG) project in Mozambique. So, why could Lord Justice Stuart-Smith, who normally sits in the Court of Appeal, and Mrs Justice Thornton not agree? What happens in the event of a 1–1 split decision of this kind? And what (if anything) might R (Friends of the Earth Ltd) v Secretary of State for International Trade / Export Credits Guarantee Department & Chancellor of the Exchequer [2022] EWHC 568 (Admin) mean for the future of UK climate litigation?

The proposed site for the LNG project is in northern Mozambique, in the offshore Rovuma Basin. It is anticipated that around 5% of the LNG extracted would be retained for domestic use in Mozambique, with the remaining 95% being exported. The challenge to the project, brought by Friends of the Earth (FoE), was really a challenge to three separate decisions.

First, there was the decision on 10 June 2020 by the CEO of UK Export Finance (UKEF) — the government’s export credit agency, which works alongside the Department for International Trade to help UK exporters to find new markets through loans, guarantees and insurance — to provide $1.15bn in financial support for the project, which was supported by the Secretary of State for International Trade.

Second, there was the approval of this investment by the Chancellor of the Exchequer on 12 June 2020.

Third and finally, there was the decision of 30 June 2020 by the Accounting Officer and Chief Executive of UKEF to approve the underwriting minute and the decision of 1 July 2020 of the Chief Executive of UKEF to approve the clearance of documents memorandum.

However, for the sake of ease, I will group these stages together and refer to them jointly as ‘the decision’. The decision was controversial within government at the time, with support from then Secretary of State for International Trade, Liz Truss, but concerns or outright opposition expressed by Business Secretary Alok Sharma, Foreign Secretary Dominic Raab and International Development Secretary Anne-Marie Trevelyan. In particular, ministers opposed to the project cited the reputational risks it posed in the context of the UK’s hosting of COP 26 the following year. Stuart-Smith LJ recognised the controversies surrounding the project in his judgment but was at pains to stress at several points that the role of the courts in cases of judicial review is not to comment on the merits of a decision but only on its legality [6, 49, 95].

FoE challenged the decision on two, closely related grounds.

Ground 1(a): the decision was based on an error of law or fact, namely that the Project and its funding was compatible with the United Kingdom’s commitments under the Paris Climate Change Agreement (“the Paris Agreement”) and/or assisted Mozambique to achieve its commitments under the Paris Agreement; and/or

Ground 1(b): UKEF’s decision was otherwise unlawful in so far as it was reached without regard to essential relevant considerations in reaching the view that funding the Project aligned with the UK and Mozambique’s obligations under the Paris Agreement.

In ruling on each of these grounds, the Court was concerned with three main questions, summarised by Stuart-Smith LJ at [96]:

First, what is the appropriate scope of enquiry when a decision maker decides to take something into account in the course of the decision-making process? Second, should the Court entertain submissions and decide questions of interpretation of the Paris Agreement? Third, and related to the second, is the Foreign Act of State doctrine relevant or applicable to the facts of this case?

The scope of enquiry

All public bodies are under a Tameside duty to carry out a sufficient enquiry prior to making a decision, so that they are in possession of all the necessary information required to make it. The name is derived from Lord Diplock’s judgment in Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 at 696, [1977] AC 1014, where he held that the question for a court is: “did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?” [1065].

However, subsequent case law has tended to view the question of what considerations should be taken into account and what information should be sought as being a matter for the decision-maker and largely context-specific, subject to the irrationality test and any statutory requirements. Citing the judgment of the High Court in R (Spurrier) v Transport Secretary [2019] EWHC 1070 (Admin), [2020] PTSR 240 [141] ff., concerning the appropriate standard of review where the Tameside duty is engaged, Stuart-Smith LJ also noted that, where the decision under challenge depends “essentially on political judgment” or involves “scientific, technical and predictive assessments” the decision-maker should be granted a wider margin of appreciation in relation to the inclusion or non-inclusion in the decision-making process of information on a particular subject [100]. Thornton J also recognised that in the context of a complex, scientific, predictive evaluation of the kind required when conducting an EIA for this kind of project, decision-makers must enjoy a wide margin of appreciation, and cited a number of other climate change cases where this principle had been stressed [271, 277]. Yet the two judges took very different views on whether UKEF had discharged its duty of enquiry, particularly as regards the calculation of Scope 3 emissions.

GHG emissions tend to be divided into three categories for the purposes of conducting environmental/climate impact assessments. The direct emissions associated with an activity or project fall within Scope 1. In this case that is the emissions associated with the extraction of LNG. In the Horse Hill oil well case it was the emissions associated with the construction of the well and associated buildings. Scope 2 emissions include the indirect emissions from the generation of purchased electricity in order to undertake the activity. Scope 3 are all indirect emissions not included in Scope 2, including the end-use of products produced by the activity.

In relation to the Mozambique LNG project, UKEF produced a climate change assessment report which posed the question: “what are the estimated Scope 3 GHG emissions of this project?”. However, the report ultimately declined to make an estimate on the basis that it would be “inaccurate and therefore likely to be misleading”. An associated environmental/human rights report stated that Scope 3 emissions could not be reported “due to considerable uncertainty in the measurement and reporting of these data”, which “could not be resolved without further analysis or due diligence” [301].

The question for the Court in the present case, therefore, was whether this failure to take Scope 3 emissions into consideration was unreasonable. Stuart-Smith LJ held that it was not. He considered that UKEF enjoyed a wide margin of appreciation over how it conducted its assessment of the climate change impacts of the proposed project in the present case, since “at the time there was no established or internationally recognised methodology for evaluating the climate change impacts of a project like the one under scrutiny” [103], and further held that quantification would not have added anything material to the qualitative assumptions made for the purpose of assessing compliance with the Paris Agreement [234].

By contrast, Thornton J noted that the UKEF climate report set itself the task of producing an impact assessment which would “fully acknowledge”, “fully consider” and “evidence” the climate change risks associated with the project so that they could be coherently presented to ministers but ultimately failed to deliver a proper assessment of those risks [332]. She pointed out that UKEF had neglected to estimate Scope 3 emissions, even though there did in fact exist a suitable methodology, in the form of the GHG Protocol used by many private-sector companies and endorsed by the House of Commons Environmental Audit Committee [304].

Scope 3 emissions for the project were eventually calculated by the Department for Business, Energy and Industrial Strategy (BEIS) after the Prime Minister requested advice on whether they could be offset. This calculation took just 24 hours and was completed on 30 June 2020, shortly before final approval for the project was given. The BEIS calculations indicated that the LNG extracted from the site would produce some 805 million tons of CO₂over the 25-year lifetime of the project, constituting no less than 0.2% of world’s entire remaining carbon budget if we are to stay within 1.5^oC of warming. Yet the UKEF climate report was never amended to reflect this updated calculation [322–324].

Other flaws in the UKEF climate report were touched upon briefly, in particular its inconsistent assessments concerning the extent to which the Scope 3 emissions from the project would be offset by a reduction in the use of more polluting fuels. While the summary section suggests it is more likely than not that the project would lead to a net reduction in global emissions, the conclusion indicates that it may lead to such a reduction, and a passage quoting analysis by the US export credit agency, US EXIM, states that it is unlikely that the project would replace more polluting fuels and suggests that it might instead hamper the growth of renewables. These differing positions could lead to very different outcomes in relation to the UK’s ability to meet its obligations under the Paris Agreement [310–316].

In light of these ambiguities, and the failure to amend the report with the updated Scope 3 emissions calculation and send it back to ministers for reconsideration, Thornton J concluded that UKEF “failed to make reasonable and legally adequate enquiries in relation to a key consideration in the decision making (climate risks). The lack of information deprived Ministers of a legally adequate understanding of the scale of the emissions impact from the Project” [333].

The interpretation of the Paris Agreement

It is worth noting at this stage that the UK’s international commitments under the Paris Agreement have no automatic force in domestic law, but that the UK has adopted a legally-binding obligation under s.1(1) of the Climate Change Act 2008 to reach net zero emissions by 2050 and an obligation on the Secretary of State to set regular carbon budgets (s.4, CCA 2008). This means that decisions can be challenged in domestic courts on the basis of their failure to comply with these domestic climate obligations, although the Act is not prescriptive about the actions that ministers or officials must take to achieve net zero. However, as the parties in the present case agreed, compatibility with the provisions of unincorporated treaties can also be justiciable in certain circumstances.

Drawing together principles from a range of authorities, Stuart-Smith LJ held that, while there was no general rule that a national court shall never determine a question of interpretation of an unincorporated international treaty, it should adopt a lower intensity of review where the language of the treaty is broad and aspirational [119]. In such circumstances, the domestic court need only satisfy itself that the decision-maker’s interpretation of the relevant treaty provisions is “tenable”, rather than necessarily correct. Thornton J concurred that the correct test in the present circumstances was that of “tenability” [262] but the judges disagreed on whether the decision under challenge satisfied that test.

Stuart-Smith LJ held that “UKEF was entitled to form the view that the support for the Project that was in contemplation was in accordance with its obligations under the Paris Agreement as properly understood. That view was at least tenable” [240], while Thornton J concluded that “the failure to quantify the Scope 3 emissions, and the other flaws in the Climate Report mean that there was no rational basis by which to demonstrate that funding for the Project is consistent with Article 2(1)(c) of the Paris Agreement on Climate Change and a pathway to low greenhouse gas emissions” [335].

Foreign Act of State doctrine

There was no disagreement on the third question, regarding the applicability of the Foreign Act of State doctrine. The Defendants submitted that the portion of Ground 1(a) concerning Mozambique’s commitments under the Paris Agreement was not justiciable, since it is not, as a matter of judicial policy, for the courts of this country to determine the legality of acts of a foreign government in the conduct of foreign affairs. After considering a range of case law on the doctrine, Stuart-Smith LJ held that, while the involvement of foreign state does not automatically preclude domestic courts from ruling on issues of foreign law, provided that there is a relevant “foothold” in domestic law in relation to the issue [130], it was not for a UK court to pronounce on whether the development of the LNG project would cause Mozambique to breach its own obligations under the Paris Agreement [232].

Where next?

So, what happens next? The split decision means that the judicial review did not succeed. However, the day after handing down its judgment, the High Court took the unusual step of issuing an order giving Friends of the Earth permission to appeal. Provided that FoE chooses to proceed, therefore, the Court of Appeal will settle the issue. Given the differing approaches taken by the judges in the lower court to Scope 3 emissions, it will be interesting to see how the judgment of the Court of Appeal in the present case interacts with its decision in Finch v Surrey County Council. Having declined to provide specific examples in that case of circumstances in which the connection between a proposed project and a putative effect might be sufficiently close to justify taking Scope 3 emissions into account when carrying out an EIA, the Court will now be forced to decide whether the connection between the planned project and the end-use emissions in the present case is so close as to make a decision to exclude them unreasonable.

The bar for success for such challenges is extremely high and the weight of recent case law is firmly against the Appellant. It would be foolish to try to predict the outcome of the appeal but, for all the reasons set out in my piece last October, one cannot help but suspect that it will be dismissed. However, given the manifest flaws in the UKEF climate change report and the scale of the GHG emissions that the project would produce, if ever there was a case to test the theory that the UK courts will never overturn a government decision on climate change grounds, this could be it.

What I’ve been up to this week

It is exam season on the Bar course, so much of my time has been taken up with preparing for assessments. But last Wednesday I took an evening off to go and see Ralph Fiennes in David Hare’s new play at the Bridge Theatre. In ‘Straight Line Crazy’, Fiennes plays Robert Moses, the hugely influential and controversial urban planner and master builder, whose decades-long career shaped much of the modern look and layout of the New York metropolitan area. After a slow start, the play worked its way up to a pretty devastating second act, and addressed many mid-twentieth-century arguments — about road-building, gentrification, access to the open space, and structural racism in planning — which are still awfully topical today.

The Supreme Court giveth, and the Supreme Court taketh away: How to terminate a fixed-term tenancy

Posted on Mar 15, 2022 by Sam Kharabanda Groom

At the start of a bumpy road, there is a checkpoint. At the checkpoint, there is a sign, which reads: IF YOU HAVE A VEHICLE, YOU CAN PASS. Does this mean that you have to use your vehicle to pass the checkpoint? Or do you only have to bring the vehicle with you to the checkpoint, and then you can pass on foot? Or is not even that required, and you only need to own a vehicle, wherever it is, in order to pass?

This is my extremely clumsy attempt to analogise the questions that were before the United Kingdom Supreme Court in Croydon London Borough Council v Kalonga [2022] UKSC 7. This case was not about road use, but about the circumstances and ways in which a public-sector landlord can terminate a fixed-term secure tenancy before its natural conclusion. Given the number of fixed-term secure tenancies granted by local authorities in England, and in particular the popularity since its introduction in 2012 of a kind of fixed-term tenancy called a flexible tenancy, it is surprising that this issue was uncertain. But now that, as of last week, the Supreme Court has had its say, the position is settled, and if it is not crystal-clear, that is all the more reason for us to take a moment to wrap our heads around it. I have tried to make this post accessible to those with no knowledge of social housing law, so I hope that specialists will forgive any over-explanation or over-simplification and skip over those parts.

The case in the Supreme Court was the second appeal against the decision of the High Court on a preliminary issue. This means that the legal arguments were made on the basis of assumed facts, before a proper trial. The detailed facts or assumed facts of the case are not material but the procedural history is as follows. Ms Kalonga had a five-year flexible tenancy with Croydon Borough Council. Two years into the tenancy, Croydon served a notice on Ms Kalonga seeking to terminate the tenancy and to recover possession of the property. Croydon relied on grounds 1 and 2 of Schedule 2 to the Housing Act 1985, which are rent arrears and anti-social behaviour respectively. Later in the proceedings, Croydon emphasised that it did not rely on forfeiture. Ms Kalonga challenged the possession claim on the basis that the only way in which a flexible tenancy can be terminated early is by way of a forfeiture clause included in the tenancy agreement. A preliminary issue was identified: “How does a landlord under a secure flexible tenancy obtain possession during the fixed term?”. The County Court transferred the trial of this issue to the High Court. The High Court’s decision was appealed to the Court of Appeal and from there to the Supreme Court. There was a second issue, namely whether Ms Kalonga’s tenancy agreement did in fact contain a forfeiture clause. For the sake of focussing on the broader issue, I am not going to discuss this here.

The disagreement is rooted in section 82 of the Housing Act 1985. This section provides for the termination of a fixed-term tenancy such as a flexible tenancy (a “tenancy for a term certain”, in the language of the Act). Any tenancy is primarily a contractual relationship between a landlord and a tenant, giving rise to contractual and proprietary rights as specified in the written agreement. The Housing Acts add to this legal position in the cases of certain kinds of tenancies, usually those granted by public-sector landlords. One important way in which they do this is by providing for security of tenure by specifying the ways in which a tenancy can be brought to an end beyond what is generally possible using a tenancy agreement. This is what section 82 does. The full wording of section 82 is as follows:

82 Security of tenure.

(1) A secure tenancy which is either—
(a) a weekly or other periodic tenancy, or
(b) a tenancy for a term certain but subject to termination by the landlord,
cannot be brought to an end by the landlord except as mentioned in subsection (1A).

(1A) The tenancy may be brought to an end by the landlord—
(a) obtaining—
(i) an order of the court for the possession of the dwelling-house, and
(ii) the execution of the order,
(b) obtaining an order under subsection (3), or
(c) obtaining a demotion order under section 82A.

(2) In the case mentioned in subsection (1A)(a), the tenancy ends when the order is executed.

(3) Where a secure tenancy is a tenancy for a term certain but with a provision for re-entry or forfeiture, the court shall not order possession of the dwelling-house in pursuance of that provision, but in a case where the court would have made such an order it shall instead make an order terminating the tenancy on a date specified in the order and section 86 (periodic tenancy arising on termination of fixed term) shall apply.

(4) Section 146 of the Law of Property Act 1925 (restriction on and relief against forfeiture), except subsection (4) (vesting in under-lessee), and any other enactment or rule of law relating to forfeiture, shall apply in relation to proceedings for an order under subsection (3) of this section as if they were proceedings to enforce a right of re-entry or forfeiture.

This section is not very easy to understand, which is why it took so much litigation to establish what it means. An important distinction to be borne in mind when tackling the section is between the three remedies under subsections (1A)(a), (1A)(b) and (1A)(c). These are the three different ways in which a secure tenancy can be brought to an end.

Subsection (1A)(a) provides for a possession order. This is a procedurally relatively straightforward remedy, which requires the landlord to show that one of the grounds for possession listed in Schedule 2 to the 1985 Act is made out (for example, rent arrears), and, sometimes, that it is reasonable for the court to make a possession order.

Subsection (1A)(b), which refers to subsection (3) provides for cases in which there is a forfeiture clause in the tenancy agreement. A forfeiture clause is basically a written clause that provides for the tenancy to be terminated early if the tenant breaches a term of the agreement. If a landlord seeks to rely on a forfeiture clause to terminate the tenancy because a tenant has breached an obligation under the tenancy, the tenant will have the opportunity to ask the court to grant relief from forfeiture, and not terminate the tenancy. The court will usually do so if the tenant can remedy their breach and undertakes to abide by the terms of the tenancy from then on. Subsection (3) explains that, if the court reaches the end of this process and would ordinarily make a forfeiture order, it will make a different kind of order effectively replacing the fixed-term tenancy with a periodic tenancy.

Subsection (1A)(c) refers to a demotion order, which can be made in cases of anti-social behaviour or unlawful use of the property. A demotion order does not terminate the tenancy, but reduces the tenant’s security of tenure for a period of a year or more, making it much easier for the landlord to recover possession at any time during that period.

The main takeaway is that, for landlords wishing to terminate a tenancy, the subsection (1A)(a) route, leading to a possession order, is generally preferable to the subsection (1A)(b) route, leading to an order in lieu of forfeiture, because the subsection (1A)(a) route is much more likely to lead to the timely vacation of the property by the tenant.

With this in mind, we can contemplate the first major question in section 82: subsection (1)(b). What is “a tenancy for a term certain but subject to termination by the landlord”? A tenancy for a term certain is a fixed-term tenancy. But is a tenancy only “subject to termination by the landlord” when there is a forfeiture clause in the tenancy, which can provide a route to termination? Or is a tenancy “subject to termination by the landlord” if there is any way in which a landlord can bring it to an end, such as a break clause or an applicable Schedule 2 ground?

Zooming out to view the whole section, including subsection (3), a second question occurs to us. If a tenancy is “subject to termination by the landlord” when there is a forfeiture clause in the tenancy, can it only be terminated by using that clause to obtain an order in lieu of forfeiture? Or, if there is a forfeiture clause, meaning that the tenancy is “subject to termination by the landlord”, can the landlord simply pursue a possession claim?

These questions have high stakes. On the one hand, if a fixed-term tenancy can only be terminated by the landlord by relying on a forfeiture clause in the tenancy agreement, tenants’ security of tenure would be excellent and landlords’ flexibility small, because, first, not all tenancy agreements contain a forfeiture clause, and, second, the forfeiture process is more tenant-friendly than the possession claim process. On the other hand, if a fixed-term tenancy can be terminated by the landlord using the possession claim process as long as there is any provision in the tenancy agreement for early termination, such as a break clause, tenants’ security of tenure would be limited and landlords’ flexibility excellent, since possession could, in appropriate circumstances, be sought on the basis of a no-fault ground in Schedule 2, such as intention to redevelop the property.

What did the courts make of these questions? The judge in the High Court, Tipples J, decided the first question in favour of Ms Kalonga and the second in favour of Croydon ([2020] EWHC 1353 (QB); [2020] 1 WLR 4809). A fixed-term tenancy could only be terminated early if it contained a forfeiture clause: that was what “subject to termination by the landlord” meant. But, if it contained such a clause, the landlord did not need to use it to terminate the tenancy, but could choose to pursue a possession claim. On Croydon’s appeal, the Court of Appeal affirmed Tipples J’s decision on the first question but disagreed on the second question ([2021] EWCA Civ 77; [2021] 2 WLR 1069). For Arnold LJ, with whom King and Asplin LJJ agreed, not only did there need to be a forfeiture clause in the tenancy agreement for a tenancy to be “subject to termination by the landlord”, but the landlord was also obliged to rely on this clause if it sought to terminate the tenancy. In other words, the Court of Appeal held that a fixed-term tenancy could only ever be brought to an end by an order in lieu of forfeiture, and that the regular possession claim process was never an option.

Croydon appealed again to the Supreme Court. Writing for the court, Lord Briggs considered that both of the cases presented by the parties were too extreme. On Croydon’s case, a model tenant would have their contractual and proprietary rights severely diminished by the Housing Act 1985, because possession could be sought in circumstances not contemplated in the tenancy agreement. On Ms Kalonga’s case, what appeared to be menu of options for landlords provided by subsection (1A) was ignored, and fixed-term tenancies could only be terminated by an order in lieu of forfeiture, which did not appear to be a natural meaning of the provisions.

Lord Briggs found what he considered to be the way between Scylla and Charybdis by paying close attention to the statutory language and by being guided by the central purpose of the Housing Acts 1980 and 1985. In his view, this was to add to, and not take away from, tenants’ contractual security of tenure. The words “cannot be brought to an end by the landlord except” in subsection (1) did not add any means of termination, but limit the means of termination from among those already available to the landlord. And when is a means of termination available to the landlord? A tenancy is only “subject to termination by the landlord” when a provision such as a break clause or a forfeiture clause is exercisable, that is, when the tenancy has obtained for the length of time required before a break clause can be used, or when the tenant falls foul of a forfeiture clause by breaching the tenancy agreement. It is not enough for such a clause to be in the tenancy agreement. The conditions must be such that landlord has the right to use it.

The upshot of this is that, if a tenancy agreement contains a provision for early termination based on anything other than the fault of the tenant, the landlord may rely on that provision to apply for a standard possession order. If the only provision for early termination is a forfeiture clause, requiring the fault of the tenant, the landlord will have to obtain an order in lieu of forfeiture in order to recover possession, giving the tenant the opportunity to apply for relief from forfeiture. If there is no provision at all for early termination, the tenancy cannot be terminated before the end of the term.

When the Supreme Court’s judgment was handed down last week, this issue had long since ceased to be material to Ms Kalonga’s situation. Her five-year flexible tenancy had expired and she continued to reside at the property under a follow-on periodic tenancy. But this judgment will help local authority landlords and tenants across England. Landlords can have confidence, based on the terms of their tenancy agreements, in which fixed-term secure tenancies are capable of being terminated early for property management purposes and can, for example, plan redevelopments accordingly. Tenants can rely on the terms of their agreements without having to worry about their being undercut by statute. The Supreme Court seems to have found a solution that is fair to all parties. Maybe next time the legislation will be drafted so that the courts are not put in the position of having to make these difficult judgements the best part of forty years after enactment.

What I’ve been watching this week

For violent, multilingual spies; for eerie opening credits sequences; for patterns of allegiance you will need to write down somewhere; for improbable sentimentality about America; for racist portrayals of other countries; for the emotional intensity of Claire Danes and Damian Lewis and the beard of Mandy Patinkin; it has to be Homeland.

Trespassers and will-be-trespassers: Anti-encampment injunctions and the recent Court of Appeal decision

Posted on Jan 26, 2022 by Sam Kharabanda Groom

Two weeks ago, I wrote about the provisions in Part 4 of the Police, Crime, Sentencing and Courts Bill that would criminalise unauthorised encampments and empower police officers to confiscate property, including mobile homes, on suspicion of such activity. Three days later, the Court of Appeal handed down its decision in London Borough of Barking and Dagenham and others v Persons Unknown and others [2022] EWCA Civ 13. This decision is the second Court of Appeal decision dealing with anti-encampment injunctions. The term anti-encampment injunctions refers to the phenomenon, now about seven years old, of local authorities applying for interim or final injunctions to forbid encampment in any of the public spaces in the local authority area. Anti-encampment injunctions are sought with members of the Gypsy, Roma and Traveller (GRT) communities in mind. For some information about the relevant characteristics of those communities, please see my last post here.

The recent decision by the Court of Appeal, which I will call Barking, is an important development in the law relating to injunctions generally. It is particularly important with respect to anti-encampment injunctions and anti-protestor injunctions. Interesting lines of case-law have developed around these two subjects. Legal issues have arisen when injunctions have been sought against individuals whose names are unknown to the applicant (described in claim forms, application notices and judgment titles as persons unknown), and in particular when injunctions have been sought not only against a fixed group of unidentified individuals but also against a individuals who may join the group after the grant of the injunction (described in the cases as newcomers). Issues arise because injunctions are powerful coercive tools that are generally only granted against individuals that are on notice of the injunction or can be put on notice. The Master of the Rolls, Sir Geoffrey Vos, took the opportunity in Barking to survey all the cases he considered relevant and clarify the law.

The decision in Barking is of far-reaching importance. In this blog post I am only trying to explain its relevance in the original context of the proceedings, which is anti-encampment injunctions. The effect of Barking on local authorities’ ability to restrain protest or other activities, and the secondary issues decided in the case, are not explored here.

I will first summarise two cases concerning anti-encampment injunctions that pre-date Barking. I will then explain the proceedings that gave rise to the High Court’s decision in Barking, the High Court’s decision itself, the Court of Appeal’s decision, and finally my view on the impact this will have on the practice of anti-encampment injunctions.

The first case we should look at is called Harlow District Council and another v Stokes and others [2015] EWHC 953 (QB) (I will call it Harlow). This decision was handed down on 3 March 2015, and it is short enough to be worth reading in full. In this case, Harlow District Council and Essex County Council (the second claimant) applied for an interim injunction to forbid encampment on any of the public spaces in the district of Harlow in Essex. The defendants to the action, who were the subject of the injunction sought by the councils, were 64 named defendants and “Persons Unknown being members of the traveller community who have unlawfully encamped within the borough of Barking and Dagenham”. The defendants were not represented in court.

The judgment tells the story of the antisocial behaviour of “certain traveller families”, “predominantly […] members of the McGinley and Stokes family”, since their arrival in October 2013 [2]. That time had seen encampments on 109 sites in Harlow, none of which had planning permission [3]. No application for planning permission had been made in respect of any of those sites, but Harlow council had failed to provide any suitable suites for encampment. As the judge, the late Mrs Justice Patterson DBE, a planning specialist, said delicately at [4]: “the council is required to make provision for gypsy and traveller accommodation within the district, but at present there is a policy void on that particular issue.” The judge went on to say that the encampments had been on “highway verges, grass verges, schools, enterprise zone land or public amenity land” [7], before setting out at length at [10] the negative consequences of the encampments that had been reported by the two authorities. These included deposits of human excrement, piles of rubbish left on vacated sites, damage to land by fires and tyres and the removal of bollards erected by Harlow council to prevent access to sites. Further, the defendants had been accused of antisocial behaviour consisting of “the presence of loose, untethered and aggressive dogs, abandoned horses, noise from generators, loud music and nuisance caused by children, vans driving and parking on public footpaths, cycle tracks and public open space” [11]. These problems had provoked anti-GRT prejudice in the area (characterised by the judge as “community tension”) and caused temporary school closures. The judge described efforts to engage with the defendants, which had failed.

The authorities sought “a district wide injunction” [16]. It is not explicit in the judgment exactly what such an injunction would forbid, but it can be inferred that it is the establishment of any encampments by the defendants on public land. The judge said at [17]:

It is, of course, a matter of fact and degree as to whether a district wide order, as is sought, is proportionate. I have no doubt, as a result of the circumstances which I have set out, that the order sought is both necessary and proportionate. First, there has been a clear breach of planning control for some 17 months and it is reasonable to apprehend further breaches should no further action be taken. Second, persistent efforts by the public authorities to deal with the problem by other means have failed. Third, the approach of the local authority hitherto has been expensive to the public purse, both in terms of money, but more significantly in terms of time spent without any visible change to the behaviour on behalf of the defendants. Third [sic], the consequences of the unlawful behaviour and breach of planning control are not conducive to the best interest of the other law abiding residents within the district.

She went on to say that the balance of convenience was “heavily” in favour of granting the injunction. She made the order, effectively requiring the defendants to leave Harlow.

Three points emerge from this case that are of broader relevance. First, the defendants were not represented. Although counsel for the authorities would under such circumstances be under a duty to raise any facts or legal principles required to enable the court to reach a just decision, there was no one to tell the local GRT community’s side of the story. Second, Harlow council was in the position of having to deal with the symptoms of a systemic problem: the “policy void” where Essex’s provision of sites for GRT encampments should have been. While antisocial behaviour of the kind described in the judgment cannot be excused, the proximity of encampments to schools and public amenity land appeared to be a result of there being nowhere more suitable to stop. Third, relatedly, in as much as the presence of unauthorised encampments represented a problem for Harlow council, requiring the campers to leave Harlow did not so much solve that problem as move it on to another local authority area, unless and until that authority either applied for and secured its own district-wide injunction or had sufficient sites on which GRT families could legitimately stop.

The second case I think we should look at is called London Borough of Bromley v Persons Unknown [2020] EWCA Civ 12; [2020] PTSR 1043 (I will call it Bromley). This judgment of the Court of Appeal was handed down on 12 January 2020, nearly five years after Harlow. The judgment of Lord Justice Coulson, with whom the Senior President of Tribunals (Sir Ernest Ryder) and Lord Justice Haddon-Cave agreed, is long, but once again it is worth reading in full because it is an accessible and detailed treatment of some important and complex issues. The history of this case is that Bromley council applied for a borough-wide injunction, similar to that successfully sought in Harlow, prohibiting encampment on any public spaces in Bromley. The council was successful in securing an interim injunction. Nine months later, it sought to convert this into a final injunction that would last for five years. The High Court (Leigh-Ann Mulcahy QC, sitting as a Deputy High Court Judge) declined to do so: [2019] EWHC 1675 (QB). The transcript of the ex parte judgment in the High Court can be read here. With the benefit of submissions from London Gypsies and Travellers, a charity that intervened in the proceedings, the judge found that an injunction prohibiting encampment would be disproportionate, but she did order an injunction prohibiting fly-tipping. Bromley appealed to the Court of Appeal, and a number of interested local authorities intervened, as well as Liberty, the civil liberties charity, and once again London Gypsies and Travellers.

Coulson LJ reported that, since the Harlow decision, there had been something of a “feeding frenzy” of local authorities applying for borough-wide injunctions against encampment. At the start of 2020, there were 38 such injunctions in place [10]–[11]. However, the hearing before Ms Mulcahy had been the first at which the GRT community had been represented (by a lawyer or otherwise). This gave her, and now gave the Court of Appeal, the opportunity to take a step back and assess the new phenomenon.

Coulson LJ set out the relevant law, dealt with the appeal before the court, and then gave general guidance on the issue. As to the first point, among other matters, he highlighted at [40]–[48] the House of Lords decision in South Bucks District Council v Porter and another [2003] UKHL 26; [2003] 2 AC 558 and the decisions of the European Court of Human Rights in Chapman v United Kingdom (2001) 33 EHRR 399, Connors v United Kingdom (2005) 40 EHRR 9 and Buckland v United Kingdom (2013) 56 EHRR 16. These cases, together, set out the level of protection that GRT individuals enjoy as a result of Article 8 of the European Convention on Human Rights in respect of their homes and their cultural traditions. As to the second point, the appeal was dismissed. Coulson LJ considered that there had been no error in Ms Mulcahy’s approach to the proportionality exercise and that she had been entitled to reach the conclusion that she had reached.

As to the third point, Coulson LJ made some general statements about the law in this area, avowedly reluctantly, at the request of the parties [99]. These statements can easily be read in full at [100]–[109] but can be summarised as follows:

The lack of designated transit sites has prevented local authorities from solving their problems. The provision of such sites is the only way to resolve the tension between the Article 8 rights of the GRT community and the common law of trespass [100].
Local authorities need to engage with their local GRT community, certainly before applying for a borough-wide injunction. If the local authority cannot demonstrate such engagement, for example in the form of an equality impact assessment for a proposed injunction, an application is likely to be refused [102]–[103] [108(d)].
Injunctions against persons unknown are exceptional measures because of the onerous burden they place on individuals not present or represented in the courtroom [104(a)].
Local authorities should understand and respect GRT culture, traditions and practices [104(b)].
When considering an application for an injunction, a court will take into account the status of the GRT community as a vulnerable protected minority, the local authority’s efforts to provide suitable accommodation, and the cumulative effect of injunctions elsewhere [104(c)–(e)].
Borough-wide injunctions, and injunctions for longer than a year, are unlikely to be granted [105]–[106].
Evidence of criminal conduct or of risks to health and safety supports an application for a wide injunction [107].
Applications for injunctions should evidence alternative suitable encampment sites, or run the risk of being disproportionate [108(a)–(c)].

The judgment concludes at [109] with these sweeping words: “Finally, it must be recognised that the cases referred to above make plain that the Gypsy and Traveller community have an enshrined freedom not to stay in one place but to move from one place to another. An injunction which prevents them from stopping at all in a defined part of the UK comprises a potential breach of both the Convention and the Equality Act, and in future should only be sought when, having taken all the steps noted above, a local authority reaches the considered view that there is no other solution to the particular problems that have arisen or are imminently likely to arise.”

Bromley represented a recognition of the unsustainability of the widespread adoption by local authorities of anti-encampment injunctions. If one accepts the narrative that unauthorised encampments on public land cause unavoidable problems, moving those encampments from one local authority area to another only moves the problems elsewhere and unsettles the displaced GRT community. Yet if a local authority area becomes disproportionately affected by unauthorised encampments because GRT individuals have been pushed out of other areas by injunctions, applying for a similar injunction itself appears to be the simplest solution.

This brings us to the Barking case. These proceedings began when the Enfield council applied for an anti-encampment injunction: London Borough of Enfield v Persons Unknown [2020] EWHC 2717 (QB). Mr Justice Nicklin declined to order an injunction and adjourned the application to enable the issues arising in the case and others to be properly considered. That was on 2 October 2020. Two weeks later, it was decided to join all the claims in which anti-encampment injunctions had been granted. This means that dozens of local authorities were parties to the proceedings (they can be identified in Appendix 1 of the High Court judgment). In late January 2021, there was a hearing before Nicklin J in order to review existing injunctions against new developments in the law relating to injunctions against persons unknown. These conjoined proceedings are the Barking proceedings. One of the key issues that had to be decided was whether a final (that is, not interim) anti-encampment injunction could bind newcomers. Newcomers are individuals who at the date of the judgment do not fall within the definition of those affected by the injunction, but who by their actions later come within that definition. For example, if an injunction is granted on 1 April 2021 against persons unknown forming unauthorised encampments in the borough, a newcomer is someone who forms an unauthorised encampment in the borough after 1 April 2021. The question was whether such individuals could be bound by a final injunction. This is important because interim injunctions are generally limited in time by a return date on which the court reviews the injunction, and operate in principle only until the court resolves the dispute between the parties, while final injunctions are generally in place for longer and are a substantive remedy.

On 12 May 2021, Nicklin J produced a long judgment ([2021] EWHC 1201 (QB)). On the key issue that we are concerned with, namely whether final anti-encampment injunctions bound newcomers, Nicklin J gave the answer no. Nicklin J considered that two authorities, Attorney General v Times Newspapers Ltd (No. 3) [1992] 1 AC 191 and Canada Goose UK Retail Ltd v Persons Unknown [2020] EWCA Civ 303; [2020] 1 WLR 2802, established the principle that a final injunction operates only between parties to proceedings. Anti-encampment injunctions did not fall within an exception to that principle. See the judgment in summary at [121]–[124], and in detail at [161]–[189]. In the light of this and other decisions on legal points in the judgment, Nicklin J discharged a number of existing anti-encampment injunctions that he had decided were impermissible [244]. Finally, he set out, at [248], rules for claims against persons unknown generally.

The local authorities appealed to the Court of Appeal. The court was asked to deal with a number of issues, but principally the question whether final anti-encampment injunctions could bind newcomers. In a word, Sir Geoffrey Vos MR, with whom Lord Justice Lewison and Lady Justice Elisabeth Laing agreed, decided that the answer was yes. Nicklin J had been wrong to decide otherwise.

Sir Geoffrey Vos summarised a number of recent authorities at [21]–[58]. He then summarised and analysed Nicklin J’s judgment. Among other things, he said that Nicklin J had drawn a “fundamental difference” between interim and final injunctions that was not supported by the cases [74]. Rather, “there is no meaningful distinction between an interim and a final injunction” [77]. He also said that Nicklin J’s proposition that it was a fundamental principle that a court could not grant a final order against someone not party to proceedings had no basis in authority [75]. As far as the Court of Appeal’s decision in Canada Goose meant that, it was wrong. Instead, the Court of Appeal’s decisions in South Cambridgeshire District Council v Gammell [2006] 1 WLR 658 and Ineos Upstream Ltd v Persons Unknown and others [2019] EWCA Civ 515; [2019] 4 WLR 100 made clear that final injunctions could be granted against newcomers, and Nicklin J should have followed those cases [99]. The guidance that Nicklin J gave at [248] “requires reconsideration” as a result [108].

That was the main point established in the judgment. Of the rest of the judgment, the most relevant passage to us is at [102]–[108], where Sir Geoffrey Vos addressed the broad terms of the guidance given by Coulson LJ in Bromley with some scepticism. He said at [105] that it is GRT individuals, and not any community, that has Article 8 rights, and that those rights do not lead to an automatic conclusion in any application for an injunction, but must be balanced against other rights in the circumstances of the specific case, such as a landowner’s right under Article 1 of Protocol 1 to the peaceful enjoyment of their property. The same goes for Coulson LJ’s statement at [109] that “the gipsy and traveller community have an enshrined freedom not to stay in one place but to move from one place to another”. That right, protected by Article 8, is qualified, not absolute, and must be balanced against the rights of others and the public interest in each case [106].

What are we to make of this? First, given the contradictory judgments by the Court of Appeal, this authoritative decision by the Master of the Rolls is to be welcomed at least for the certainty that it brings to local authorities and others (notwithstanding any application for permission to appeal to the Supreme Court). Second, the emphasis on everything-depends-on-the-circumstances is legally sound but little practical guidance is offered to help courts considering applications for injunctions to balance the rights of GRT individuals in encampments with the rights of other local residents that are violated by unauthorised encampments. Even if everything depends on the circumstances, an authoritative judgment can set out a useful starting-point, a list of factors to consider and how to weigh them. Third, it is now clear that anti-encampment injunctions can apply to newcomers, meaning that their reach is not limited to those who have already unlawfully encamped on public land. Anti-encampment injunctions have not lost their sting. Although the decision in Bromley may have encouraged courts to take a more measured approach, local authorities may return to their use of these injunctions as a key tool to oppose any antisocial behaviour associated with unauthorised encampments. Between this phenomenon and Part 4 of the Police, Crime, Sentencing and Courts Bill (if passed), GRT individuals leading a traditional itinerant lifestyle will find the number of spaces on which they can safely stop continue to shrink. A real solution to this problem on a strategic level, or even a desire among policymakers to look for one, is nowhere in sight.

What I’ve been doing this week

I hope it doesn’t give too much away about my character (that readers haven’t already gleaned) if I say that I have fallen in love with Frasier. The simple stories, screamingly funny lines and loving skewering of pretentiousness is just what I need after, before or during a day of law. I’m on season 5. I have no idea how the reboot will work but I will be there for it.

For the birds? Judicial review challenges to protect hen harriers and other animals

Posted on Nov 22, 2021 by Sam Kharabanda Groom

This week I learned that some 7% of the United Kingdom consists of moorland cultivated for the sport of grouse shooting. The area of land used for grouse shooting within national parks alone is more than twice the size of Greater London. The sport of grouse shooting involves trying to kill red grouse with a shotgun. It is practised in two forms. In a driven grouse shoot, the more common and more prestigious form, beaters sweep across the moor in a line, driving grouse towards a stationary parallel line of shooters, who aim at the oncoming birds. In a walked-up shoot, which provides more physical exercise for the shooters, a line of shooters and beaters walks across the moor, causing the disturbed grouse to fly away from them and be shot at from behind. In both cases, the speed and low flight of a grouse presents a challenge to those wealthy enough to participate.

The shooting of grouse and other birds for sport does not attract the same scale of public condemnation as fox hunting. This could be because mammals earn our compassion more easily than other animals, because shooting a bird is perceived as delivering a quick death not comparable to the suffering of a hunted fox, or because shooters tend to wear less ostentatious costumes than hunters. Nevertheless, grouse shooting is controversial. On the one hand, it involves the annual burning of vegetation on carbon-storing peat bogs, the culling of animals thought to threaten the health of grouse, and, of course, the killing of birds for fun. The Royal Society for the Protection of Birds campaigns, not for the end of grouse shooting, but for more sustainable practices. On the other hand, the British Association for Shooting and Conservation, a membership organisation that lobbies for the “interests of shooting”, claims that grouse shooting delivers local economic benefits and preserves unique moorland habitats at a low cost to the taxpayer.

Gamekeepers are responsible for ensuring that there is sufficient wildlife (or game) on an estate to provide good sport. In the context of grouse shooting, this primarily involves the elimination of animals considered to threaten the population of grouse. One of these animals is the hen harrier. Hen harriers are birds of prey that can be found across Europe and Asia. In the United Kingdom, hen harriers nest in moorland heather and feed grouse chicks to their young. Nesting hen harriers are often killed and their nests destroyed. It is suspected that this is done by gamekeepers, because the presence of this predator is not conducive to the aim of a large population of shootable grouse. Although such treatment of hen harriers is criminal, the law is not well enforced, due in part to the inherent difficulty of monitoring activity on vast expanses of moorland, and also due, it could be thought, to the political power of those running and visiting the estates. But the persecution of hen harriers cannot be allowed to continue without accepting the disappearance of the species from this country, because their numbers are extremely low. Birds of Conservation Concern 4: the Red List for Birds, published in 2015 by the British Trust for Ornithology, lists hen harriers as a species of conservation concern. In 2017, it was reported that only four breeding pairs remained in England. For this reason, it has been considered necessary to find ways of protecting and promoting the propagation of hen harriers while preventing or disincentivising their deliberate destruction on grouse moors.

Natural England, the public body charged with protecting and promoting the natural environment in England, has grappled with this problem. One potential solution has been the licensing of diversionary feeding. Diversionary feeding involves providing hen harriers will food so that they do not need to eat grouse chicks. Although this practice has succeeded in Scotland, landowners in England have not embraced it because it is claimed to be costly, ineffective, and liable to interfere with the suppression of other predator species.

Another potential solution is known by its proponents as brood management and by its detractors as brood meddling. These euphemistic terms refer to the practice of removing hen harrier chicks from their nests, raising them in captivity and releasing them as adults into the wild. BM, as one can neutrally say, is controversial. It is generally supported by those associated with grouse shooting and opposed by conservationists. However, such is the nature of the hen harrier problem that some find it difficult to imagine any successful solution without the buy-in of the landowners and shooters.

We now have to interrupt this narrative for a brief but important exposition of some relevant law.

Section 1(1) of the Wildlife and Countryside Act 1981 makes it a criminal offence to intentionally kill, injure or take any wild bird; to intentionally take, damage or destroy the nest of a wild bird while that nest is in use or being built; or to intentionally take or destroy the egg of any wild bird. Further, in respect of those species of birds listed in schedule 1 of the Act, section 1(5) makes it an offence to disturb a bird while the bird is building a nest or is in, on or near a nest containing eggs or young, or to disturb the bird’s dependent young. Hen harriers are listed in schedule 1.

It can be seen that section 1 of the Wildlife and Countryside Act makes unlawful practices including BM. However, under section 16 of the Act, the Secretary of State (who delegates this power to Natural England) may grant licences to permit an activity that would otherwise fall foul of section 1. In order to be so permitted, an activity must be for one of a fixed list of purposes set out in section 16(1). These include (section 16(1)(a)) “scientific, research, or educational purposes”, and (section 16(1)(c)) “the purpose of conserving wild birds”. Section 16(1A)(a) provides that Natural England may only grant a licence for any of these purposes if “it is satisfied that, as regards that purpose, there is no other satisfactory solution”.

Further to this, hen harriers are listed as a threatened species in annex 1 of the EU Birds Directive (2009/147/EC). This means that EU member states are required to take special conservation measures to ensure the survival and reproduction of hen harriers and to designate “special protection areas” for them. There are two special protection areas in England relevant to hen harriers: the Bowland Fells and the North Pennines Moors. Most hen harrier nesting activity in England takes place in these areas.

Section 8(1)(d) of the Conservation of Habitats and Species Regulations 2017 provides that a special protection area under the Birds Directive is a “European site” for the purposes of those Regulations. Under regulation 63 of the Regulations, if Natural England is considering authorising a plan or project that is likely to have a significant effect on a European site (for example when it is considering an application for a licence under section 16 of the Wildlife and Countryside Act), it must make an assessment of the implications of the plan or project for the site in view of the site’s conservation objectives. Having made that assessment, Natural England can only agree to the plan or project (that is, grant the licence) if it is satisfied that it will not affect the integrity of the European site.

In practical terms, the legal provisions explained above have the following effect. If you want to undertake BM or another conservation practice in England that would involve committing an offence under section 1 of the Act and that is likely to have a significant effect on a special protection area, you must apply to Natural England for a licence. In order for a licence to be granted to you, (a) the practice you wish to undertake must be for a specified purpose, (b) there must be no other satisfactory solution to achieving that purpose, and (c) the practice must not affect the integrity of the special protection area.

Back to our regularly scheduled programming. In 2015, Natural England’s Science Advisory Committee advised the Board of Natural England to initiate a scientific trial of BM in England. The Board accepted the advice and passed it to the Secretary of State for the Environment, Food and Rural Affairs (then Liz Truss MP). published a document called the Joint Action Plan which proposed, among other things, diversionary feeding and a BM trial. Such a trial would, it was proposed, need to be licensed under section 16(1)(a) of the Wildlife and Countryside Act 1981. In 2017, an application was made to Natural England for a licence under that section to carry out activities to obtain evidence of the effectiveness or otherwise of BM. The trial would examine the effect of BM on the moorland community as well as whether released hen harriers would go on to become successful breeding adults in the wild. The licence would cover the first two years of a five-year trial.

Considering the application, Natural England completed two assessments. One, the Technical Assessment, assessed the merits of the proposed trial generally. The other, the Habitats Regulations Assessment, assessed the implications of the proposed trial in view of the conservation objectives of the two relevant special protection areas (the Bowland Fells and the North Pennines Moors), as required by regulation 63 of the Conservation of Habitats and Species Regulations. In 2018, the Chief Operating Officer of Natural England accepted the application and approved the grant of a licence.

Natural England’s decision to grant this licence was met with disagreement by those who consider that brood management is an ineffective way to protect hen harriers that prioritises the concerns of the shooting lobby. Both the RSPB and Dr Mark Avery applied for permission to apply for judicial review the grant of the licence. Dr Avery is a scientist, a conservation activist and a former International Director of the RSPB. Permission was granted and the applications were heard together in the High Court by Mrs Justice Lang in December 2018 and January 2019. In March 2019, judgment was handed down dismissing the applications: R (RSPB) v Natural England; R (Mark Avery) v Natural England [2019] EWHC 585 (Admin). In October 2019, Lord Justice Newey granted both claimants permission to appeal to the Court of Appeal. The appeals began to be heard together in March 2020, but the hearings were interrupted by the illness of one of the judges. In May 2020, Natural England granted a second licence, in similar but not identical terms to those of the first licence, to enable the BM trial to continue until 30 September 2021. The appeals were re-listed and finally fully heard by Lords Justices Underhill (VP), Newey and Phillips in January 2021. Now, the parties made arguments about the second licence, and not the first licence, which had expired but which remained technically the subject of the legal challenge. Judgment was handed down dismissing the appeals on 9 November 2021: R (RSPB) v Natural England; R (Mark Avery) v Natural England [2021] EWCA Civ 1637.

There was no point in my creating suspense about the outcome of these proceedings. Judicial review challenges concerning animals tend to fail. It is more interesting to try to ask why this might be.

There were eight separate grounds of challenge before Lang J. They were clearly set out and dealt with at paragraphs [52] to [124] of the High Court judgment. The most interesting are the two in respect of which permission to appeal was granted. They are, first, that Natural England misapplied section 16(1) of the Wildlife and Countryside Act 1981, and, second, that it was unlawful to permit BM in the two special protection areas.

The claimants’ primary argument on the first issue was that it was a mistake to characterise the relevant purpose as that under section 16(1)(a), a “scientific, research, or educational” purpose. What had to be assessed was not the direct purpose of the proposed trial but the ultimate purpose of the activity, which was conservation (section 16(1)(c)). Once this was understood, it was clearly not the case that there was no other satisfactory solution to achieving the relevant purpose. Namely, either diversionary feeding or the effective enforcement of the offences under section 1 would be a satisfactory solution in respect of conservation. As such, if Natural England had identified the correct purpose, it should not have granted the licence. The Court of Appeal disagreed about the identification of the purpose. The appropriate purpose is the specific purpose for which the licence is sought. If it were necessary or possible to identify a higher-level purpose, which could often be conservation, the extended list in section 16(1) would be pointless. Natural England was right to consider that this trial had a research purpose, namely to gather evidence about the conservation and social science impacts of BM in England, and as such that there was no other satisfactory solution to achieving this purpose.

On the second issue, the claimants argued that the concept of BM was fundamentally incompatible with the integrity of the special protection areas. Even if the displacement of hen harriers took place within a single area, the birds were still removed from their habitat. The Court of Appeal considered that both the trial and BM more generally should be seen in the long term. On this view, any displacement was temporary, while the real purpose of the activity was the preservation and promotion of the hen harrier population in the area.

These issues, and those dispensed with in the High Court, are relatively pedestrian public-law issues. Can the fact that they were relied upon, and the fact that they failed, tell us anything about the use of the judicial review procedure to challenge decisions affecting the welfare of animals?

First, judicial review generally attacks procedural defects. Unless a decision is vitiated because it is ultra vires (outside the powers of) the public body altogether, or so unreasonable that no reasonable decision-maker could have made it, both of which are rare, an application for judicial review will usually have to identify a material consideration that was not taken into account, or a consultation requirement that was not met, or a principle of natural justice that was neglected (we have all heard enough about that recently). It is really only in the realms of fundamental rights that substantive review grows any teeth by way of proportionality analysis. And, as we all know, animals have no fundamental rights. If a public body makes a decision that is harmful to animals, the law is such that that in itself will usually provide no basis for a judicial review. If the decision is vulnerable, it will be by accident, because there happens to have been a legally significant error besides the contended moral wrongness of the decision. Until animals are granted or recognised as having meaningful rights in public law, or until more weighty duties are placed on the public bodies charged with making decisions affecting them, judicial review will be an unreliable technique for animal activists.

Second, judicial review is a powerful but blunt instrument. It can nullify a decision whatever the consequences if that decision is vitiated by a legal error. This is because the courts, in this field at least, are concerned with absolute rights and wrongs. A public body may never act contrary to procedural fairness or beyond its legal powers, regardless of any countervailing reasons for doing so in a particular case. In the same way, if a public body is within its rights to act in a certain way, a court will not weigh that against any reasons why it should not do so. The law’s dealing in such absolute terms is to be contrasted with politics and the balancing-acts and trade-offs between incommensurable interests that are conducted in that field. (These are the two moralities described by John Laws in The Constitutional Balance.) This situation puts animals at a disadvantage under the law because the law, like our society, generally takes the view described by Robert Nozick as utilitarianism for animals and Kantianism for people (by which he meant humans). This means that, while humans are recognised as possessing some absolute rights that can never be overridden, animal interests are only relative, always susceptible to submission to another goal. To succeed in a judicial review, you need a trump card, and animals have no trump cards.

These two considerations do not mean that animal activists cannot usefully use the judicial review procedure. There will be times when an unpopular decision is vitiated by a procedural error unrelated to the merits of the decision, and a campaigning organisation could legitimately challenge that decision. The rule of law requires that unlawfully-made decisions be open to challenge regardless of litigants’ motivation. There will also be times when, even under the current law, a decision is unlawful for reasons genuinely related to the consideration of or impact on animal interests. The Humane League’s litigation about inherently unhealthy breeds of chicken could be one such case. Finally, the common law develops through litigation, and each application for judicial review presents the court with an opportunity, of varying significance, to do things differently.

These potential benefits have to be balanced against the significant financial cost of taking cases like this to court. Money is sometimes raised from individuals who have not been presented with a sober and objective assessments of the legal merits of the case. Might animal activists not do better to bring fewer speculative judicial review challenges, and spend the time and money building up their own voices on the political field, so that they do not have to complain after every decision that the shooting lobby, the farming lobby, or the development lobby has captured the public institutions? That way, they could set their sights higher than the dozens of UK-resident hen harriers, and aim to protect the thousands of red grouse that are killed for fun every year. If it could be done for foxes through political means, why not for birds?

This intersects with a further issue for animal activists. Should the guiding principle be conservation, that is the protection and promotion of species, or animal rights or welfare, where the focus is on individual living beings? My background, as can probably be seen by reading this post, is in the latter approach. I have not rehearsed the arguments here. It is fundamentally a moral question, not a legal or a tactical one. However, it is interesting to wonder whether one approach lends itself more readily than the other to legal enforceability against the state. If the aim is to lift certain debates outside the realm of politics and situate them in the courtroom, a campaigning organisation, or the movement in favour of animals generally, could cynically adopt the moral position that would most readily achieve this. Whether there is indeed a difference here, and if so in whose favour, is a question for another day.

What I’ve been listening to this week…

It is so nearly Advent. I have been sustaining myself with this incredible recording of César Franck’s Violin Sonata, performed live in Moscow by David Oistrakh and Sviatoslav Richter in 1968. I don’t think I am projecting an Advent feeling onto it: The first three movements have searching qualities, sometimes lost, sometimes frenzied and sometimes in deep despair. The final movement feels like Christmas.

Photo by Mark Hamblin.

Not remotely fair: When you need planning permission to work from home

Posted on Nov 8, 2021 by Sam Kharabanda Groom

The pandemic revealed that many jobs could be done more or less effectively from home. Inevitably, the phenomenon has become controversial on a number of fronts. Does working from home improve quality of life by cutting out commuting, or does it erode the boundary between work and leisure to the detriment of the latter? Are home-workers environmentally responsible, or are they reckless towards the livelihoods and institutions that rely on their presence in an office? Is it only the insufferable hipster laptop class that can enjoy the new possibilities, or only an older generation that luxuriates in large studies? Does working from home improve accessibility to certain jobs, or does it rob junior workers of opportunities to learn from their peers and their seniors? What kind of TW&T are you?

More attention has been paid to whether we should work from home than to whether we may work from home. This was understandable in March 2020, when there seemed to be little choice. But now we can reflect. Planning law regulates the use of land, including the use of one’s home. The change in the use of land since this time two years ago has been enormous. It would be odd if the law had nothing to say about this.

The issue arose in a recent High Court case, Sage v Secretary of State for Housing, Local Government and Communities (sic) [2021] EWHC 2885 (Admin). Before we look at the case, it is helpful to set out some of the relevant law and policy provisions. There is nothing very complicated.

Section 57(1) of the Town and Country Planning Act 1990 sets out the general rule that “planning permission is required for the carrying out of any development of land.” Section 55(1) gives the general definition of “development”: “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.” It is the last part that is relevant to us. So our starting-point is that, if you want to make a material change in the use of a building or land, you need planning permission.

Section 55(2) provides exceptions to the definition of development. One of these is as follows, in section 55(2)(d):

the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such

So, if you want to make a change to the use of your home, there are two questions. First: Is the change material? Second: Is the new use incidental to the enjoyment of your home as a home? If the change is material, and the new use is not incidental, you need planning permission. If the change is not material, or the new use is incidental, you do not need planning permission.

In order to answer these questions in the context of a particular case, we need to flesh out the two rather obscure terms, material and incidental. Judges have opined on the meaning of each of these terms and others that are of importance in planning law. However, this is not very helpful to laypeople, who need practical advice in an accessible form. To this end, the government publishes Planning Practice Guidance online alongside the National Planning Policy Framework, which is the government’s planning policies for England.

Each piece of Planning Practice Guidance addresses a different issue. One piece of the Guidance is entitled When is permission required? This contains two passages that are helpful in our context. First, there is a passage entitled When does a change of use require planning permission? The passage is as follows:

A change of use of land or buildings requires planning permission if it constitutes a material change of use. There is no statutory definition of ‘material change of use’; however, it is linked to the significance of a change and the resulting impact on the use of land and buildings. Whether a material change of use has taken place is a matter of fact and degree and this will be determined on the individual merits of a case.

This gives us limited guidance about what material means.

Second, there is a passage entitled Do I need planning permission to home work or run a business from home? The passage is as follows:

Planning permission will not normally be required to home work or run a business from home, provided that a dwelling house remains a private residence first and business second (or in planning terms, provided that a business does not result in a material change of use of a property so that it is no longer a single dwelling house). A local planning authority is responsible for deciding whether planning permission is required and will determine this on the basis of individual facts. Issues which they may consider include whether home working or a business leads to notable increases in traffic, disturbance to neighbours, abnormal noise or smells or the need for any major structural changes or major renovations.

This first sentence of this paragraph appears to address the term incidental, while the phrase in brackets describes the term material. The second and third sentences appear to be of general application. The overall impression that this paragraph makes is that the two questions whether a new use of land is incidental to the use of a home as a home and whether a change of use is material are two ways of looking at the same question, and that the kinds of factors relevant to answering that question have to do the impact of the change of use on others in the area. Based on this paragraph, you could assume that planning permission to work from home would not be required if the change did not disturb the neighbours.

Finally, if you want to confirm that how you are using your home is lawful, you can apply to your local planning authority for a certificate of lawful use under section 191 of the Town and Country Planning Act 1990. If the authority refuses the application, you can appeal under section 195 to the Secretary of State (for Levelling Up, Housing and Communities). The appeal would be considered by an Inspector on behalf of the Secretary of State. If the Inspector dismisses your appeal, you can make a further appeal to the High Court under section 288. An application to appeal in this way requires permission from a judge to proceed to a full hearing, based on the merits and importance of the appeal.

That is the background. On with our case.

Ricki Sage is a personal trainer who lives in Beckenham. He has a shed in his garden that contains, among other things, gym equipment. Starting in 2016, Mr Sage’s clients would come to his home and use the shed and the equipment in it. Clients would access the garden and the shed from a passage between the house and the neighbouring house. Mr Sage did not apply for planning permission to use his home in this way, presumably because he did not think he needed it. Instead, he applied to his local planning authority, the London Borough of Bromley, for a certificate of lawful use to confirm that his use of his property was lawful. Bromley rejected the application. Mr Sage appealed to the Secretary of State.

The Inspector described the issue that he had to decide as follows:

whether the appellant has shown that use of a residential outbuilding as a one-to-one personal training studio is ancillary to the residential use of the dwelling and has not amounted to a material change of use requiring planning permission.

We can see here the two issues we identified earlier, although the statutory term incidental has been replaced with the word ancillary.

The Inspector referred to the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? and focussed on the issue of noise highlighted in that passage. The Inspector considered that there was no or negligible noise resulting from the use of the property for personal training. The Inspector was more concerned by the clients’ comings and goings, using the passageway between the properties and arriving and leaving by car. He said the following about this:

Given the residential setting, this is likely to have caused a noticeable increase in general noise and disturbance in and around the property. Consequently having regard to the number, frequency and duration of the training sessions the studio use is materially different in character to use as a home gym by occupiers of the dwelling and it has appreciably changed the manner in which the property is being used.

The Inspector’s conclusion was that using the shed and garden for personal training sessions did constitute a material change of use of Mr Sage’s home. His appeal was dismissed.

Mr Sage responded to this decision by making a second application to Bromley for a certificate of lawful use. In this application, Mr Sage intended to address the deficiencies of his first application, which he considered had been rejected solely because of the disturbance caused by the comings and goings of his clients. He provided the hours in which his property was accessed by clients, the means of transportation that his clients used, letters from neighbours stating that they were not disturbed by any noise from his clients, and a report by an acoustics expert stated that the clients’ arrival and departure created no discernible noise or disturbance.

Bromley rejected Mr Sage’s second application. Having asked local residents, it found that the opinion that Mr Sage’s clients’ comings and goings caused no disturbance was not universally shared. Based on the information it had gathered and that provided by Mr Sage, Bromley considered that the use of the shed and garden for personal training had “the potential to have a negative impact on existing residents.” As such, that use was sufficiently different in character from the use of Mr Sage’s home as a home to change the character of the use of the land.

The Inspector who considered Mr Sage’s appeal against the refusal of his second application said that the issue was whether Mr Sage’s use of his shed and garden was “incidental to the residential use of the dwelling or represents a material change in that use, that requires planning permission.” The Inspector accepted that the impact of the personal training in terms of noise was negligible. However, this was not the only issue. In her decision letter, the Inspector said as follows:

18. I acknowledge that the training sessions themselves appear to be well controlled, and this is a view supported by the acoustic report and evidence provided by local residents about the lack of noise. Nonetheless to my mind, noise is not the only factor to consider. The comings and goings that arise from at least 4 to 5 clients a day, in addition to those individuals who would usually be expected to visit a dwelling, can also cause disturbance to neighbours. Any disturbance is exacerbated by the tight knit design of the properties and need for callers to use the narrow access and small rear garden, which is clearly visible [from] the rear windows and gardens of the neighbouring dwellings.

19. For the above reasons, in this compact residential setting, I do not consider that the scale of the business related training sessions, both at the time of the application, and at the reduced level, can reasonably be considered to be either de minimis or incidental to the enjoyment of the dwelling house. Accordingly, a mixed use has occurred. I am satisfied that this finding accords with the advice found on the Planning Portal and referred to in the appellant’s statement.

20. Consequently, in the particular circumstances of this case, I find that as a matter of fact and degree, the use of the outbuilding for business related training sessions on this scale, is not incidental to the use of the dwelling and results in an overall change in the character of the property.

In summary, the Inspector decided that the level of disturbance other than noise created by the personal training, primarily the visible passage of clients into and out of Mr Sage’s property, means that the use of the property for this purpose was a material change of use and was not incidental to Mr Sage’s use of his home as a home. It followed that Mr Sage’s appeal was dismissed.

Mr Sage appealed against this decision to the High Court. He was granted permission to proceed to a full hearing by Timothy Mould QC, sitting as a Deputy High Court Judge. Mr Mould said as follows:

This claim raises an arguable issue about the materiality of environmental and amenity considerations to the question whether the use of a building within the curtilage of a dwelling house is for a purpose incidental to the enjoyment of the dwellinghouse as such, within the terms of section 55(2)(d) of the Town and Country Planning Act 1990.The issue is of some importance given the increasing use of the home as a place of work and business. The court will be assisted by the parties’ submissions on the correctness in law of the current Planning Practice Guidance on that question.

Mr Sage appealed against the second Inspector’s decision on three grounds. First, he argued (or his barrister, Kate Olley, argued on his behalf) that visual disturbance was an immaterial consideration in this case, and that the Inspector had erred by basing her decision on this. Second, he argued that the Inspector’s reasoning was legally inadequate: in particular, she had not explained why it was more visually disturbing for a client to visit Mr Sage’s home than for a friend to do so. Third, he argued that the Inspector’s decision on disturbance was irrational because the evidence was not capable of supporting a conclusion that Mr Sage’s use of his land disturbed anyone, either aurally or visually.

The judge who heard the appeal was Sir Duncan Ouseley, a retired High Court judge with experience in planning law who stills hears cases occasionally. He rejected Mr Sage’s first ground of appeal. It is true that the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? does not list visual disturbance as a relevant issue. However, the list is non-exhaustive. Visual disturbance was not immaterial. The judge also rejected Mr Sage’s second ground of appeal. In the context of the decision letter as a whole, the nature and extent of the visual disturbance caused by Mr Sage’s clients was perfectly well explained. Finally, the judge rejected Mr Sage’s third ground of appeal. The Inspector’s treatment of the issue of visual and aural disturbance was well within the scope of permissible planning judgment. If she erred, it was in favour of Mr Sage. It followed that Mr Sage’s appeal was dismissed.

Having dispensed with the appeal, the judge dealt with two remaining matters. First, he addressed serious deficiencies in Mr Sage’s application form for a certificate of lawful use, which could have resulted in his case failing even if one of his legal arguments had succeeded.

Second, and it appears that this is why Mr Mould granted permission to appeal, the judge addressed the passage of Planning Practice Guidance entitled Do I need planning permission to home work or run a business from home? The passage (again) states as follows:

Two things about this passage concerned the judge. First, the first sentence is a confusing statement of the law. Just because a property is “a private residence first and business second” does not mean that the business use will be “incidental” to the use of the home as a home. And the two distinct questions, of material change and incidental use, are blurred. Second, the third sentence suggests that the focus of these questions is on environmental impact such as might affect neighbours. This is misleading. Environmental impact may be one of many factors. As the judge said at paragraph 82: “The crucial test is whether there has been change in the character of the use.” This may be measured by having regard to disturbance produced, but no disturbance is required is order for land to be used differently from before.

This is important for any home-workers whose conventional place of work would be an office. Such work, in general, would create significantly less disturbance than personal training, and would not tick any of the boxes in the guidance. A computer-based home-worker could easily infer from the guidance that they would never require planning permission to work from home. Following this High Court decision, that is in doubt.

The guidance, as criticised by the judge, gives the impression that the threshold for requiring planning permission in these cases is higher than it is. Your home can be a home first and a place of work second, where the work is imperceptible by neighbours, and still undergo a material change of use from being purely a home and the business use not be incidental to the home use. Of course, if disturbance is not the only or even the primary factor, the question is: what are the factors to be taken into account? Does the number of monitors I set up in my home office determine whether my move to working from home is a material change of use? Or the number of days each week that I work from home? Does the size of my home office affect whether my use of part of my home as an office is incidental to the use of my home as a home? Is it about space, or time? If neither, what can we go by?

These are exactly the questions that judges in planning cases regularly decide and that planning professionals answer. We could conduct a review of the case-law to anticipate what the answers might be. But, as the judge pointed out, what is considered a normal use of a home has changed a great deal recently. Principles from the past may not be directly applicable to today’s cases. The millions of people who now work from home at least some of the time require practical, accurate and up-to-date guidance from the government so that they do not have to pay lawyers or involve themselves in litigation like Mr Sage did to ensure that they are in a legally sound position. Hopefully, the DLUHC will update its guidance so that it accurately reflects the law as it applies today and so that we can all know whether we need to ask the council’s permission to sound-proof the spare bedroom.

Finally, we have to recognise a further set of questions. If the factors determining how I can use my land go beyond the use’s effect on others, what is the justification for that limitation of my property rights? What business does the state have controlling what I do quietly within my four walls? Balancing the interests of the individual proprietor with the interests of the community is the classic rationale for planning law. The answer to the question is that the community to whose interests my rights must sometimes submit is broader that the immediate geographic area around my home. My choice to work from home affects the cafés and the air quality around my now-quiet office. It can contribute to changes in house prices; it could influence investment in infrastructure. If the government wants to put its thumb on the scales of the debate alluded to in my opening paragraph – is working from home to be encouraged or discouraged, and under what circumstances? – one of the easiest ways it can do so is by simply making it unlawful for me to work from home. Whether this would be an abuse of state power or an appropriate displacement of the market from its decision-making role is a debate for another time. But we can probably all agree that it would be best if planning policy at least knew what it was doing.

What I’ve been listening to this week…

After the clocks go back, it suddenly feels like Advent, but it is three weeks until I can put on those albums. So I have been looking for other warming, comforting music. This week, it has been Fauré’s Cantique de Jean Racine, which may as well be Advent music to me. Who knows why, but Bruce Springsteen has been really hitting the spot too.

And I finally saw No Time To Die, but I can’t talk about that.

Over my dead body: Privacy rights of the deceased under the ECHR

Posted on Oct 25, 2021 by Sam Kharabanda Groom

Most people are dead. Nevertheless, dead people have little in the way of legal rights. They are (probably) not eligible for many of the common important rights: the right to bodily integrity and physical liberty; political, social and economic rights. In a striking exception, the wishes of the deceased in respect of their property are protected by the well-developed process of probate. That branch of the law aside, it may generally be said that, once a person passes away, the law washes its hands of them. Inquests deal with the dead, of course, but they are primarily concerned with rights that the subject had in life, rather than with any rights that they retain. The same goes for litigants whose estates can be represented in proceedings after their demise.

So I sat up when this Tweet by Andrew Tettenborn crossed my desk:

A very dangerous holding for free speech. Human rights law may require the reputation of the dead to be protected. Art.8 is getting seriously out of control. M.L. v. SLOVAKIA – 34159/17 [2021] ECHR 821https://t.co/xrrjcVeORi
— Andrew Tettenborn (@seatradelaw) October 14, 2021

The decision referred to in the Tweet was ML v Slovakia [2021] ECHR 821 (application number 34159/17), which had been handed down by the European Court of Human Rights that day, 14 October 2021. The case provoked a small amount of displeasure on the platform, including on the part of the well-loved anonymous legal commentator SpinningHugo, who described the decision as “a disgrace”.

How did we get here? How did the European Convention on Human Rights reach a point where (in Professor Tettenborn’s words) it “may require the reputation of the dead to be protected”? In this blog post, I will follow the lines of authority that lead the Court to the decision in ML v Slovakia in order to clarify exactly what it stands for. Luckily for us, the cases are generally interesting and varied in their subject-matter. But I should say, for the benefit of anyone who would rather not read about such topics, that one of them, Hadri-Vionnet v Switzerland, discusses the consequences of a stillbirth, and another, ML itself, mentions sexual abuse by a Catholic priest.

I intend to stick to the expository side of legal analysis and not give my opinion on what the law should be. But it would be remiss of me to fail to contextualise the discussion. That is why I included the opening paragraph, and why I note that the field of information law in the UK generally excludes the dead too. Recital 27 of the GDPR, which has been incorporated into UK law, provides that “this Regulation does not apply to the personal data of deceased persons”. And section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934 provides that, in contrast to most claims, defamation claims may not be maintained on behalf of the estate of a deceased person. This context is what makes ML v Slovakia interesting.

Before we explore the cases, it is worth briefly reminding ourselves about Articles 8 and 10 of the ECHR and the relationship between them. Article 8 provides as follows:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

And Article 10 provides as follows:

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

A qualified ECHR right such as Article 8 or 10 generally has a certain structure. The purpose of the right is primarily to restrain state action. In certain circumstances, the Articles place the state under a positive obligation to take action, but this is less common. An Article makes it unlawful for the state to do A, or requires it to do A as the case may be, but carves out an area B, described by its paragraph (2), that is not encompassed by A. A is the state’s zone of obligation and B is its zone of freedom. Article 8 prevents the state from doing 8A (interfering with privacy etc generally), but permits it to do 8B (interfering with privacy etc in accordance with law when necessary in a democratic society and for a purpose listed in paragraph (2)). Article 10 prevents the state from doing 10A (interfering with the freedom of expression generally), but permits it to do 10B (interfering with the freedom of expression as prescribed by law, necessary in a democratic society and for a listed purpose).

This is possibly an overcomplication of a familiar mechanism, but it is worth spelling it out in this way to make a preliminary point. Frits Hondius said in 1983: “Article 8 and 10 are each other’s reflection in the mirror”. One person’s right to privacy often has to be weighed against another person’s right to freely express information. This is structurally possible because Article 8(2) provides that “the protection of the rights and freedoms of others” is a justification for interfering with privacy, and Article 10(2) provides that “the protection of the reputation or rights of others” is a justification for interfering with the freedom of expression. The state is permitted to interfere with a person’s right to privacy in order to protect the freedom of expression in circumstances that put the interference within 8B. But that does not mean that that interference, which constitutes protection of the freedom of expression, will itself be required under Article 10. 10A does not begin where 8B ends. And, similarly, 8A does not begin when 10B ends. A state may be free to limit privacy to protect the freedom of expression where that protection goes beyond its obligations under Article 10. And a state may be free to limit the freedom of expression to protect privacy beyond what Article 8 requires.

The point to take away from this is that it matters whether the court is deciding a case under Article 8 or 10 ECHR, even if issues of both privacy and the freedom of expression are at stake. A court’s decision in an Article 8 case about balancing privacy and the freedom of expression may well not be seamlessly transferable to an Article 10 case. If you think this point is obvious, please join me on my journey through cases in which that does not appear to be the universal position.

Our starting-point is Editions Plon v France (application number 58148/00), which was decided in 2004. This case revolved around the death of François Mitterrand. Mitterrand was President of the French Republic from 1981 until 1995. In 1981, shortly after his first election as President, Mitterrand was diagnosed with prostate cancer, and it was from this illness that he died on 8 January 1996. The cancer was not revealed to the French public until a surgical operation took place on 11 September 1992. Even then, it was not public knowledge that the President had been diagnosed long before.

On 8 November 1995, Editions Plon, a French publishing company, signed a contract to acquire the rights to Le Grand Secret, a book co-written by a journalist and Mitterrand’s former doctor, Claude Gubler. The big secret to which the title referred was the concealment of the French President’s illness for longer than ten years. The publication of the book, originally scheduled for mid-January 1006, was postponed upon Mitterrand’s death. However, this decision was reversed because of what were perceived to be public slights upon Dr Gubler’s professional reputation. Publication was set for 17 January 1996. The Mitterrand family sought and were granted in urgent proceedings an injunction prohibiting distribution of the book on 18 January 1996. The injunction was subsequently made permanent in standard civil proceedings and upheld on appeal, not on the ground of interference with the privacy of Mitterrand or his family, but on the ground of the breach by Dr Gubler of his duty of medical confidentiality towards the late President. The publisher, its managing director and Dr Gubler were each ordered to pay damages to the Mitterrand family. Further, Dr Gubler was convicted of the crime of breaching professional confidence and given a suspended sentence.

The publisher made a claim against France before the European Court of Human Rights for breach of its Article 10 rights. It claimed that the injunction was not prescribed by law, did not pursue a legitimate aim, and was not necessary in a democratic society. It further claimed that the fine it had to pay was disproportionate to the aim it pursued.

The Court allowed the publisher’s claim in part. It held that the interference with the publisher’s Article 10 rights was prescribed by law and pursued a legitimate aim. The urgent injunction had been necessary in a democratic society, but the permanent injunction had not been. As a result, the publisher’s Article 10 rights had been violated. The Court did not make a finding about the damages the publisher had been ordered to pay.

For our purposes, the interesting part of the judgment is at paragraph [34]. Here, the Court is deciding whether the injunction against distributing Le Grand Secret pursued a legitimate aim. The Court said as follows (emphasis added):

It is apparent both from the reasoning of the judgments of the domestic courts, in particular the Court of Appeal’s judgment of 27 May 1997, and from the Government’s submissions before the Court that the judicial authorities based their decisions on a combination of two of the “legitimate aims” listed in paragraph 2 of Article 10 of the Convention, namely “preventing the disclosure of information received in confidence” (information covered under the national legislation by the rules of medical confidentiality) and protecting the “rights of others” (those of the President, and of his widow and children, to whom they were transferred on his death).

It is not for the Court to determine whether the civil liability incurred on account of the breach of medical confidentiality comes, in abstract terms, under the first of these legitimate aims, the second or both at once. It is sufficient for it to note that in the instant case the measures complained of, namely the interim injunction and the decision on the merits to keep the ban in force, were intended to protect the late President’s honour, reputation and privacy, and that the national courts’ assessment that these “rights of others” were passed on to his family on his death does not appear in any way unreasonable or arbitrary. Moreover, it is precisely because much of the information disclosed in the book was classified in law as secret, and was therefore a fortiori received in confidence, that it was capable in practical terms of infringing the rights of others, the protection of which is deemed legitimate in paragraph 2 of Article 10.

Accordingly, the interference in issue pursued at least one of the “legitimate aims” set out in the second paragraph of Article 10 of the Convention.

It is important to see what the Court says here in the context of the Article 10 analysis. The Court is saying that France was free to restrict the publisher’s freedom of expression in order to “protect the late President’s honour, reputation and privacy”. It is not saying anything about what Article 8 requires. In 2004, there was no indication that Article 8 required the protection of the reputation of the dead.

Our next case is Hadri-Vionnet v Switzerland (application number 55525/00), in which judgment was handed down in 2008. In 1996, Dalila Hadri-Vionnet, an Algerian national, sought asylum in Switzerland. On 4 April 1997, Ms Hadri-Vionnet gave birth to a stillborn baby. When asked immediately after the birth, the baby’s mother and father said that they did not want to see the body. The local civil service proceeded to transfer the baby’s body to a communal grave for stillborn babies, where the body was buried without a ceremony. Ms Hadri-Vionnet’s criminal complaints against the authorities for misuse of official authority, disturbing the repose of the dead, unlawful removal of property, and violation of her personal freedom under the Swiss Federal Constitution. The last complaint was made in the light of a decision of the Swiss Federal Court that the constitutional right to personal freedom encompassed the right of parents to object to any unjustified intervention in relation to the remains of a deceased child. All of Ms Hadri-Vionnet’s complaints were dismissed by the Swiss courts. She applied to the European Court of Human Rights in December 1999, complaining that her not having been able to attend her child’s funeral and the body’s transportation in an ordinary delivery van violated her rights under Article 8 ECHR.

The Court held that Article 8 had been violated. Having established that Ms Hadri-Vionnet’s Article 8 rights were engaged and interfered with in the circumstances, the Court was quickly able to decide that there had been no legal basis for the interference. Of interest are paragraphs [50] to [52] of the judgment, where the Court said as follows (emphasis added):

50. The Government did not contest the applicability of Article 8 to the instant case.

51. The Court reiterates that the concepts of private and family life are broad terms not susceptible to exhaustive definition (see, for example, Pretty v. United Kingdom, no. 2346/02, § 61, ECHR 2002‑III). Thus the former Commission had considered that the wish to have one’s ashes scattered on one’s own land was covered by the first concept (see X v. Germany, decision of 10 March 1981, no. 8741/79, Decisions and Reports 24, p. 137). Later, in the case of Znamenskaya v. Russia (no. 77785/01, § 27, 2 June 2005), the Court considered the “private life” aspect of Article 8 to be applicable to the question of whether a mother had the right to change the family name on the tombstone of her stillborn child. In the case of Pannullo and Forte v. France (no. 37794/97, § 36, ECHR 2001‑X), the Court considered the excessive delay by the French authorities in returning the body of their child following an autopsy to be interference with the private and family life of the applicants. Lastly, in the case of Elli Poluhas Dödsbo v. Sweden (no. 61564/00, § 24, ECHR 2006‑…), the Court considered that the refusal to authorise the transfer of the urn containing the applicant’s husband’s ashes was a matter falling within the scope of Article 8, without however stating whether the interference found related to the concept of private life or family life.

52. In the light of that case-law, the Court considers Article 8 to be applicable to the question of whether or not the applicant was entitled to attend the burial of her child, possibly accompanied by a ceremony, and to have the child’s remains transported in an appropriate vehicle.

There are two points to note in these paragraphs. First, Switzerland did not contest the applicability of Article 8, so although the Court stated that its conclusion was supported by its previous decisions it would not have heard full argument on the point. Second, the decision is focussed on the wishes and feelings of the living applicant, Ms Hadri-Vionnet. Both the Court’s conclusion and the decisions cited concern the impact of state action or inaction on a living person. Paragraph [52] puts within the scope of Article 8 whether “the applicant was entitled to attend the burial” and “to have the child’s remains transported in an appropriate vehicle”,with Ms Hadri-Vionnet as the grammatical subject despite the second component concerning the treatment of the body, not of the mother. It was emphatically Ms Hadri-Vionnet’s Article 8 rights, as a matter of both substance and form, that had been violated.

The Court decided some relevant cases between 2008 and 2011, including Palade v Romania (application number 37441/05), Hachette Filipacchi Associés v France [2007] ECHR 5567 (application number 71111/01) and John Anthony Mizzi v Malta [2011] ECHR 1960 (application number 17320/10). However, none of these contributed anything new after Editions Plon and Hadri-Vionnet. The next case worth examining in detail is Putistin v Ukraine [2013] ECHR 1154 (application number 168882/03), decided in 2013. The applicant, Vladlen Mikhaylovich Putistin, was the son of Mikhail Putistin, a professional footballer who had taken part in the “Death Match”, a notorious football match between Ukrainian and German players during World War Two. When the Ukrainian side lost, at least eight of its members were sent to concentration camps and at least three, which were executed. Fast forward to 2001, by which time Mikhail Putistin had died, not by execution of the Nazis. A newspaper published an article that essentially alleged that the Ukrainian players who had not been executed after the match had been collaborators with the Gestapo. The article did not mention Mikhail Putistin’s name. But his son applied to the Ukrainian courts for rectification of untrue information and damages. He had no success. He applied to the European Court of Human Rights to complain of a breach of his right to the protection of his reputation under Article 10 ECHR, but the Court decided that the application should be considered under Article 8. The Court decided that Article 8 was applicable to the application before dismissing it on the basis that that the interference with the applicant’s Article 8 rights had been minimal and the Ukrainian courts had struck an appropriate balance between the competing rights of the applicant, the newspaper and the journalist. Paragraph [33] is the interesting part, where the Court considered the applicability of Article 8. The Court said as follows:

33. The question of whether the damage to the reputation of an applicant’s family can be considered an interference with the right to respect for the applicant’s private life was raised, but not finally decided, in Palade v. Romania ((dec.), no. 37441/05, § 25, 31 August 2012). The Court can accept, as do the Government, that the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the scope of Article 8.

Three points to note. First, again, Ukraine accepted the applicability of Article 8 to the situation, limiting the precedential value of the decision on this point and perhaps contributing to the terseness of its expression. Second, while still formally directed to the applicant and not to his late father, the formulation of what falls within the scope of Article 8 is more protective of the deceased individual than Hadri-Vionnet. In that case, what mattered was the protection of the applicant’s agency in respect of her child and her feelings consequent to the denial of that agency. In this case, the applicant’s relationship with his late father was not in any way interfered with. It was simply the impact on the applicant of the impact on the father’s reputation that mattered. This seems to be different. Third, the “certain circumstances” are not fleshed out at all. Especially in the light of the novelty of the conclusion, the Court does not give any guidance as to how, or how often, it will apply.

The decision in Putistin was considered in an interesting 2014 decision, Yevgeniy Yakovlevich Dzhugashvili v Russia (application number 41123/10). This case related to a complaint by the grandson of Joseph Stalin that the Russian state was failing to protect the reputation of the latter against attacks in newspapers. The Court essentially rejected the application on the basis that legitimate criticism of public figures was to be distinguished from defamatory attacks on private persons. Part of the Court’s reasoning, in paragraphs [21] to [27], is worth reading in full. The Court said as follows (emphasis added):

21. The complaint is twofold. In so far as the applicant can be understood to be complaining of a violation of the Convention rights of his grandfather, the Court will first examine the applicant’s locus standi in this respect.

22. In the case of Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000-XI) the applicant, as the heir of a deceased person, was complaining on behalf of the latter in respect of his claims for recognition of the right to die in dignity. The Court considered that the right claimed under Article 8 of the Convention, even assuming that such a right existed, was of an eminently personal nature and belonged to the category of non‑transferable rights.

23. The Court confirmed the principle that Article 8 rights were non‑transferable when it refused a universal legatee to pursue an application lodged by the immediate victim in the case of Thevenon v. France ((dec.), no. 2476/02, 28 June 2006).

24. The Court does not find sufficient reasons to depart from its established case-law in the instant case. It follows that the applicant does not have the legal standing to rely on his grandfather’s rights under Article 8 of the Convention because of their non-transferable nature.

25. It follows that this part of the complaint is to be rejected under Article 34 as being incompatible ratione personae with the provisions of the Convention.

26. As to whether the applicant’s own right to respect for his private and family life are at stake in the instant case, the Court will proceed with the examination of whether the two above-mentioned disputes and the way in which they were resolved by the domestic courts affected the applicant’s own private and family life and, if so, whether the State took such measures as to secure effective respect of the latter.

27. In its recent case-law the Court has accepted that the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the scope of Article 8 (see Putistin v. Ukraine, no. 16882/03, §§ 33, 39, 21 November 2013, where a publication in the mass media allegedly provoked the presupposition that the applicant’s father had been a Gestapo collaborator).

This is worth reading for two reasons. First, it is authority, if any were needed, for the proposition that, as a formal matter, a family member cannot apply to the Court to vindicate a deceased person’s Article 8 rights. Any rights protected must belong to a living person. Second, the Court accepted in principle the decision in Putistin, although it said at [28] that it was “not ready to draw a parallel with the Putistin case” because of the different subject matter of the application. Although it is not clear, this indicates that the Court did not reject the application on the basis of justification for interference, but on the basis that the “certain circumstances” did not extend to Yevgeniy Yakovlevich’s situation, meaning that no Article 8 rights were interfered with at all. So we have a small indication of how the “certain circumstances” are to be drawn.

For our next case, we leave the terrain of Article 8 and return to Article 10. In Genner v Austria [2016] ECHR 36 (application number 55495/08), Michael Genner had written a piece for publication on the website of an organisation supporting asylum seekers and refugees that celebrated the death of the Austrian Interior Minister, Liese Prokop (referred to as “L.P.” in the judgment). Mr Genner was convicted of the crime of defaming Ms Prokop, partly due to the association of the late Ms Prokop with Nazi ideology. His conviction was upheld on appeal and he complained to the European Court of Human Rights that his Article 10 rights had been violated. The Court dismissed the application, since the interference with Mr Genner’s Article 10 rights was prescribed by law, pursued the legitimate aim of protecting the reputation and rights of both Ms Prokop and the members of her family, and was proportionate.

Two short passages stand out. First, when discussing the relevant principles, the Court said at [35] as follows:

35. Dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Article 8 (see with further references Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008, Editions Plon v. France, cited above § 46 and Putistin v. Ukraine, no. 16882/03, § 33, 21 November 2013). […]

It may be said that this is a pedantic point, but to say that the action described here simply “falls within the scope of Article 8”, with no mention of the “certain circumstances” from Putistin, is striking. Perhaps this is part of a trend of moving the whole battle into the justification stage from the earlier interference stage. Or perhaps, because this is not strictly an Article 8 case, the Court did not feel the need to express itself precisely on this point. Whatever is the fair judgment on that point, it is concerning that the Court cites Editions Plon, an Article 10 decision that does not mention Article 8 once, to support a proposition about Article 8. It is unclear why it was thought relevant to explain this Article 8 principle at all, when any balancing exercise between Articles 8 and 10 is far from explicit in this case. It is all the harder to work out when paragraph [46], to which the reader is referred, does not appear to be relevant and it may have been an error to cite it.

Second, when applying the principles to the facts of the case, the Court said at [41] as follows (emphasis added):

41. The Court further agrees with the government that the interference did pursue the aim of the protection of “the reputation or rights of others”, namely those of L.P. and the close members of her family ‒ in particular her husband ‒ which constitutes a legitimate aim within the meaning of paragraph 2 of Article 10 (see, Editions Plon v. France, cited above, § 34).

What we remarked upon at the start of our journey in Editions Plon is referenced and repeated: as a matter of justification for interfering with Article 10 rights, a state is free to consider that the rights of a deceased person continue to be capable and worthy of protection. This is in marked contrast to the formal position under Article 8, as expressed in Dzhugashvili at [24]. The fact that the principles in these two classes of case need to be carefully distinguished is what makes it problematic that the Court cited Editions Plon in the way it did at [35].

This brings us to our recent case: ML v Slovakia [2021] ECHR 821 (application number 34159/17). We come back to Article 8. The son of the anonymous applicant had been a Roman Catholic priest and a convicted sex offender before dying in 2006. In 2008, newspapers ran articles about the deceased man that, in the applicant’s view, alleged more than had been proved in court, interfering with both his and her privacy rights and contributing to a deterioration in her health. Although partly successful at first instance in her attempt to secure apologies and damages through the Slovakian courts, the applicant failed following all possible appeals. The applicant applied to the European Court of Human Rights, arguing that her Article 8 rights had been violated. The Court agreed. The applicant’s Article 8 rights had been interfered with; the deceased’s lack of prominence, the sensationalism of the articles, and their lack of any contribution to a debate of general interest should have led the Slovakian courts to conclude the balancing exercise in favour of the applicant.

Two passages demand remarks. First, the Court said at [23] about the applicability of Article 8 as follows:

23. It is clear from the Court’s case-law (see Hadri-Vionnet v. Switzerland, no. 55525/00, § 51, 14 February 2008, with further references; Editions Plon v. France, no. 58148/00, § 46, ECHR 2004‑IV; and Putistin v. Ukraine, no. 16882/03, § 33, 21 November 2013), and the Government accepted, that dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Article 8 of the Convention.

This is basically a repeat of paragraph [35] of Genner, with the garnish of Slovakia’s acceptance of the principle. Notably, the same authorities, with the same apparently erroneous or at least unhelpful paragraph reference to Editions Plon, appear to have been copied and pasted in. But Genner itself is not even cited in this case, which is no wonder, because it is an Article 10 case, not an Article 8 case. So why is it the source of such an important principle in this decision?

Second, the Court said at [48] in the context of the balancing exercise as follows:

48. Lastly, the Court is ready to accept that the distorted facts and the expressions used must have been upsetting for the applicant and that they were of such a nature as to be capable of considerably and directly affecting her feelings as a mother of a deceased son as well as her private life and identity, the reputation of her deceased son being a part and parcel thereof (see Putistin, cited above, § 33, and Dzhugashvili v. Russia (dec.), no. 41123/10, §§ 27 and 30, 9 December 2014).

This paragraph seems to be doing nothing more than reassuring the reader that it is substantively as well as formally the rights of the applicant that are at stake, not any rights of her deceased son. But it does so in a fascinating way absent from the other cases. It does not say that the impugned articles were upsetting for the applicant, but that they “must have been upsetting” for her, because they were “capable of” affecting her feelings by reason of her relationship to the dead man. The justification for including the protection of the reputation of family members within the scope of Article 8 is not the real impact on the applicant in this case, but the principled point that the reputation of a deceased family member is “a part and parcel” of one’s private life and identity. This is the opposite of Putistin’s “certain circumstances”, and we have left the applicant-focussed reasoning of Hadri-Vionnet. The reasoning, if not the conclusion, in Dzhugashvili is difficult to maintain in this light. The Court is no longer hesitant to include the protection of the reputation of family members within the scope of Article 8, accepting arguments on a case-by-case basis. It now does so on principle.

It is easy to understand why ML provokes strong feelings. Pre-existing concern with a perceived excessive extension of ECHR rights allies with a distaste for the substance of the claim brought by the applicant in this case. But if hard cases make bad law, it would not have made ML a better decision if it had been decided differently simply because the applicant’s son was a sexually abusive priest. What makes ML a bad decision is that it is built on insecure foundations. We have seen in these cases that states routinely fail to argue arguable points, resulting in thinly-reasoned conclusions; principles are passed between the contexts of Article 8 and Article 10 analysis with insufficient distinction; infelicities in language that are of little importance in one case are carried over into another in which the change is substantial; and the important anchor of the applicant’s own experiences of their private life in Article 8 cases has left the jurisprudential seabed. It is no exaggeration to say that paragraph [48] of ML suggests that deceased persons have a right to the protection of their reputation via the Article 8 rights of their living relatives, in substance if not in form. Seemingly throwaway statements like it in the earlier cases have had serious consequences down the line.

What I’ve been listening to this week…

I’ve been to a marvellous party. Specifically, Shefali and I celebrated our engagement surrounded by as many of our loved ones as circumstances allowed. Not a natural dancer, I approached that aspect of the event with (unnecessary) trepidation. So, of course, I have been listening to You Never Can Tell by Chuck Berry, on a loop, to get my practice in.

Unreasonable Credit?

Posted on Sep 20, 2021 by Lois Lane

Recent weeks have seen a lot of media focus on Universal Credit. The Government’s decision to bring to an end the £20-per-week uplift to the benefit, introduced in response to the early phase of the Covid-19 crisis, has been widely criticised by poverty charities, Conservative backbenchers and former welfare ministers, and even the UN-appointed special rapporteur on extreme poverty, Olivier De Schutter, who referred to the move as “unconscionable” and suggested it might breach the UK’s international human rights obligations.

On 7 July 2021, the day that the decision to scrap the uplift from the end of September was announced, the prime minister appeared before the House of Commons Liaison Committee, where he defended the move by arguing that the Government’s focus “has got to be on getting people in work and getting people into jobs, and that is what we are doing” [Q73]. However, the Department for Work and Pensions’ own figures for July reveal that just over 40% of claimants are already in work. In the same month, around 22% of claimants had no work requirements attached to their claim, a status typically reserved for people who are long-term disabled or have full-time caring responsibilities.

The prime minister’s rhetoric, suggesting a binary choice between claiming Universal Credit and working, is indicative of a widespread and deeply entrenched misconception about welfare claimants. Moreover, such misconceptions are not of merely abstract concern. They can have tangible implications for the direction of government social security policies, setting up false choices between serving the interests of taxpayers on the one hand and benefits claimants on the other, as Boris Johnson suggested in Prime Minister’s Questions last week. In fact, many benefits claimants are also taxpayers.

In addition to being in the news more often over the past eighteen months, Universal Credit has also been in the courts. A number of recent and ongoing judicial review challenges against different aspects of the current benefits regime have not only called into question whether the system is meeting its stated objectives, but also raised wider political and philosophical questions about the role of social security in society. In the interests of brevity, I will focus on three cases. The first concerns the calculation of housing costs under Universal Credit for tenants who pay their rent on a weekly basis, the second the mechanism for claiming childcare costs under the current system, and the third the decision to exclude claimants on legacy benefits from the £20-per-week Universal Credit uplift during the Covid-19 pandemic.

How can a year have 53 weeks? This question was central to R (on the application of Caine) v Secretary of State for Work and Pensions [2020] EWHC 2482 (Admin), [2020] 9 WLUK 273, which concerned the mechanism by which housing costs are calculated under Schedule 4 of the Universal Credit Regulations 2013 (SI 2013/376).

One of the key features of Universal Credit when it was first introduced was that it was paid monthly in arrears, rather than weekly or fortnightly, as had been the case with most legacy benefits. This was designed to mimic the world of work, in keeping with the government’s aim of encouraging and supporting claimants back into employment. One of the side effects of the decision to pay claimants a month in arrears was the much-debated five-week wait for the first payment for new claimants. However, this frequency of payment also created a less widely acknowledged issue for many claimants in receipt of the housing costs component of Universal Credit.

Schedule 4, paragraph 7(2) of the Universal Credit Regulations provides a formula for calculating how much money claimants should be entitled to each month in housing costs. For claimants who pay their rent on a weekly basis, this formula involves multiplying the amount by 52 and then dividing by 12. In most financial years this will not cause any problems for claimants. However, because a 365-day year is not perfectly divisible by seven, in some financial years the day on which a tenant’s rent is payable will fall 53 times. In such years, the formula in Schedule 4, paragraph 7(2) will leave claimants one week’s housing costs worse off over the course of 12 months.

In Caine v SSWP, the claimant challenged this conversion formula as being both irrational and unlawful under Article 14 of the European Convention on Human Rights, when read in conjunction with Article 1 of Protocol 1. She submitted that the policy unfairly discriminated against tenants who paid their rent on a weekly rather than a monthly basis.

Her challenge was dismissed on both grounds. On irrationality, Mr Justice Knowles held that the formula was not irrational because “the Universal Credit Regulations were not intended or designed to reimburse a tenant for every penny she spends on housing costs, but were only intended to provide a contribution towards them” and could therefore be said to be operating as they were intended to [206]. On the challenge under Article 14, while he noted that even a small shortfall in the amount payable under Universal Credit could be of great significance for people on very low incomes, he found that the interference with claimants’ rights was not disproportionate to the legitimate aims of consistency and simplicity, which underpinned the design of the conversion formula in the Universal Credit Regulations [224].

On the face of it, this decision might not seem very surprising. The bar that must be cleared for an irrationality challenge to be successful is very high. According to Lord Diplock’s famous formulation in Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9, [1985] AC 374, for a decision to be held to be irrational or ‘Wednesbury unreasonable’, it must be “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it” [p. 410]. In cases involving proportionality reviews of restrictions on qualified rights, too, the original decision-maker is usually afforded a fairly high degree of latitude, provided they are pursuing legitimate aims (see, for example, R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69 [2016] AC 1355, [272]).

Yet earlier this year, another High Court challenge to an aspect of the Universal Credit Regulations on very similar grounds was successful. R (on the application of Salvato) v Secretary of State for Work and Pensions [2021] EWHC 102, [2021] PTSR 1067, was a challenge brought by a single working mother, Nichola Salvato, against Universal Credit Regulations 2013, reg. 33 — the so called ‘proof of payment rule’ — whereby Universal Credit claimants have to pay for childcare costs up-front and provide proof of payment in order to be reimbursed. Like Ms Caine, Ms Salvato submitted that the regulation was irrational and also indirectly discriminatory on grounds of sex under Article 14 ECHR, read this time in conjunction with Article 8, as well as Article 1 of Protocol 1. Unlike Ms Caine, her challenge was successful on both grounds. Mr Justice Chamberlain held that a rule which required proof of payment, rather than proof of liability to pay, in order to secure reimbursement for childcare costs was “antithetical to one of the underlying principles of the overall scheme”, that of supporting claimants with children into work, and was therefore irrational [177d]. Moreover, he held that such a system was incompatible with Article 14, since there was no evidence that ministers had considered the ‘liability to pay’ model as an alternative method of achieving their legitimate aims, and the infringement on benefits claimants’ rights was therefore disproportionate [174].

Given how infrequently decisions are found to have met the threshold for irrationality in judicial review proceedings and how reluctant the courts usually are to be seen as making politicised judgments, this ruling on a flagship Government policy seems surprisingly radical. Although, it should be noted that the Court of Appeal has since heard an appeal by DWP in this case and its judgment has not yet been handed down.

Even were the Court of Appeal’s judgment in Salvato v SSWP not currently pending, it would be dangerous to try to extrapolate too much from just two cases. Yet the contrasting outcomes in Caine v SSWP and Salvato v SSWP do raise some interesting questions about what choices by ministers over the design of the benefits system may be deemed to be so outside the realms of logic or accepted moral standards as to be irrational in the eyes of the law. Might it be that the courts are more willing to find that a decision about welfare payments is irrational or a disproportionate infringement on claimants’ rights where it directly affects their ability to seek or secure employment? If so, could this reflect the fact that ministers and the public are more comfortable with the idea of a benefits system which promotes the search for work and disincentivises long-term dependency?

These questions are also raised in the final ongoing case that I wish to briefly touch upon. It is another Article 14 claim, this time by two people in receipt of Employment Support Allowance, one on Jobseekers’ Allowance and one on Income Support. It was granted permission by the High Court in a decision dated 27 April 2021, with a substantive hearing scheduled for 28–29 September 2021. The Claimants are challenging the government’s decision not to extend the £20-per-week Universal Credit uplift to people on legacy benefits, arguing that they were unlawfully denied £1040 per year, to which they should have been entitled. If the claim is successful, then millions of legacy benefit claimants could be entitled to substantial back-payments. A spokesperson for DWP has responded that “it has always been the case that claimants on legacy benefits can make a claim for universal credit if they believe that they will be better off.”

This challenge highlights open questions about what the primary purpose of the Universal Credit uplift was. One obvious answer is that it was designed to support people who had lost their jobs due to Covid-19. There is some polling evidence to suggest that public attitudes towards welfare claimants softened somewhat during the first wave of the pandemic, before hardening again in the summer of 2020, according to a report by major national research project Welfare at a (Social) Distance. Within this overall picture, however, the researchers found evidence of what they termed ‘Covid exceptionalism’, with survey respondents more likely to say that people who lost their jobs specifically due to the pandemic were not to blame for being out of work. The polling data seems to indicate that stereotypes about the ‘deserving’ and ‘undeserving’ poor persisted throughout the crisis, and it may be these stereotypes in part which motivated the decision to confine the £20-per-week uplift to those claiming Universal Credit, a conditional benefit with a particular focus on moving people back into work, as opposed to people on long-term disability benefits.

None of this is to suggest that the courts share the view that some welfare claimants are inherently more deserving than others. Rather, if such an assumption can be argued to underpin aspects of government welfare policy, it might also influence which individual policy decisions are to be regarded as rational or irrational on their own terms. The cases touched on very briefly here all raise questions about whether the primary role of benefits in society is as a stop-gap to support people back into work, or a longer-term solution to guarantee everyone a decent standard of living. For as long as that question remains current, we are likely to see tricky legal questions around the administration of Universal Credit and other benefits making their way through the courts.

What I have been watching this week…

This weekend I was lucky enough to score a free ticket to a matinee performance of Hamilton in the West End. Being back in a theatre for a live performance for the first time since before the pandemic was quite a thrill, and the show itself was every bit as intelligent, funny, and joyous as I’d hoped it would be. I feel like I’d have to listen to it through several more times to properly pick up on all the jokes and references, but I especially enjoyed the sly dig at modern electoral politics when one member of the ensemble suggested that the infamous Aaron Burr seemed like someone “you could grab a beer with”.

At the intersection of law and activism: obstructive protests after DPP v Ziegler

Posted on Sep 6, 2021 by Lois Lane

On 25 June 2021, the Supreme Court handed down its judgment in what is being hailed in activist circles as a landmark case for protest rights in the United Kingdom. Director of Public Prosecutions v Ziegler and Ors [2021] UKSC 23; [2021] 3 WLR 179 arose out of a protest against the biennial Defence and Security International (DSEI) arms fair at the Excel centre in East London. The appellant protesters had sought to disrupt deliveries to the site by lying down in the middle of the dual carriageway leading to the Excel centre. They were charged with wilful obstruction of a highway, without lawful authority or excuse, under of Section 137 of the Highways Act 1980, but were acquitted at trial. The DPP successfully appealed to the Divisional Court but that decision was itself overturned by the majority of the Supreme Court in June.

How did a seemingly routine protest case prove so difficult to resolve? And is the excitement with which many activists have greeted the judgment justified or misplaced?

Notwithstanding the relative simplicity of the facts of the case, the Ziegler judgment dealt with some complex and important points of law around obstructive protests. The main considerations for the Supreme Court were: 1) what test should be applied by appellate courts to an assessment of the decision of the trial court in respect of a statutory defence of ‘lawful excuse’ when Convention rights are engaged in a criminal matter; and 2) whether physically obstructive conduct by protesters is capable of constituting a lawful excuse for the purposes of Section 137 Highways Act 1980 (DPP v Ziegler at [7]).

On the first issue, appellate courts have traditionally applied Wednesbury unreasonableness standards to the decisions of lower courts in cases involving Section 137, holding that a decision over whether a lawful excuse defence applies should stand unless no reasonable court could ever have come to it on the facts. However, the Divisional Court in DPP v Ziegler held that, because interpreting Section 137 in the context of the European Convention on Human Rights involves an assessment of the proportionality of an authority’s actions at the trial stage, so an assessment of proportionality should also be made at the appeal stage. Following In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, this would allow an appellate court to overturn a decision which it considered to be ‘wrong’ and not merely one that was irrational.

The majority of the Supreme Court held that this was not the correct approach. They noted that In re B was a family law case and therefore involved the appellate test under the Civil Procedure Rules, which did not apply in criminal proceedings, and held that it would be unsatisfactory in practice and principle for two separate appellate tests to apply, depending on whether the issue of proportionality was engaged. Indeed, in some marginal cases, it might even be challenging to determine whether proportionality was sufficiently central to the case to engage the alternative test (DPP v Ziegler at [43–44]). Thus, the appellate test should be irrationality, even in cases involving an assessment of proportionality. If there is an error in the judge’s reasoning which colours her assessment of proportionality, the Supreme Court held that that error should be open to challenge under the traditional test. No separate appellate test is needed.

The second issue turns on the provision in Section 3(1) of the Human Rights Act 1998 that, “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” In the present case, the majority of the Supreme Court held that conviction under Section 137 Highways Act 1980 constitutes a restriction on individuals’ ability to exercise their rights to freedom of expression and assembly under Articles 10 and 11 of the ECHR (DPP v Ziegler at [57, 94]). The question then becomes whether, in any given scenario, the interference in pursuit of the legitimate aim of preventing disorder was “necessary in a democratic society”. This engages questions of proportionality and will be highly fact-specific. Yet the judgment does establish that, as a matter of principle, the protection of Articles 10 and 11 can extend to protesters engaging in acts of intentional obstruction, albeit subject to an assessment of proportionality.

The Supreme Court also grappled with the question of whether the subject of a protest is relevant when determining questions of proportionality. In a joint judgment at [17], Lord Hamblen and Lord Stephens cited the judgment of Lord Neuberger in City of London Corpn v Samede [2012] EWCA Civ 160; [2012] WLR (D) 41, which dealt with protests arising out of the Occupy movement and held that the relevant considerations in determining proportionality and lawfulness included “the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public” (City of London Corpn v Samede at [39]).

Lord Neuberger was clear that a court should not pass judgment on the merits of the protest itself, but he did note that it might be reasonable for a judge to consider whether a protest dealt with very important issues and factor this into her assessment of proportionality, though it should never be the determining factor. One might consider that whether or not a judge considers an issue to be of great importance is almost as subjective a question as whether she agrees with the protesters’ position on it, but we will pass over that potential conundrum for the present.

At the time of writing, Extinction Rebellion (XR) protesters are coming to the end of a fortnight of protests, aimed at disrupting sites in the City of London and other locations across the capital. These are far from the only high-profile protests to have occurred in the UK in recent years, which have also seen activists demonstrate against Brexit, Donald Trump’s state visit, the prorogation of Parliament, systemic racism, Covid-19 restrictions, and violence against women. However, the Extinction Rebellion protests provide an especially useful case study through which to assess the impact of DPP v Ziegler. Because the current ‘Impossible Rebellion’ is the latest in a series of actions by the group, all with a shared aim of focusing public and political attention on the climate and ecological emergency, and all employing similar deliberately disruptive tactics, the response of the police and courts to XR protesters over time may be instructive.

There have, in fact, been several high-profile acquittals of XR protesters by juries in recent years. The co-founder of the group, Roger Hallam, was acquitted of criminal damage in 2019 after spray-painting “Divest from oil and gas” on King’s College London’s Strand Campus, and the so-called ‘Shell Six’ were acquitted in Southwark Crown Court earlier this year, in explicit contravention of the judge’s direction that the jury should not be influenced by whether they considered the damage to Shell’s London headquarters to be morally justified. Meanwhile, Angela Ditchfield was acquitted of criminal damage to Cambridge County Council’s headquarters at trial in 2019 but convicted in March 2021 after a successful appeal by the Crown Prosecution Service. The activists themselves have touted these cases as evidence of a gulf between juries and the judiciary when it comes to climate change protests but, whether that is the case or not, they have certainly resulted in a rather confusing body of case law.

Does the welcome clarity provided by the Ziegler judgment on some relevant points of law help to resolve this confusion or offer a clear new direction for the courts in obstructive protest cases? Already, the judgment has had an impact on XR activists previously convicted of wilful obstruction, with a number of convictions being overturned in early August 2021, and a request by Judge Mark Dennis QC, sitting with two magistrates, for the CPS to review all previous convictions. However, the extent to which the judgment will affect the number of prosecutions arising out of future protests remains to be seen, as does whether the application of Articles 10 and 11 to wilful obstruction cases will also apply to other offences arising out of protests, such as criminal damage or the knowing violation of conditions imposed under Sections 12 and 14 of the Public Order Act 1986. At present, it would certainly seem safer for protesters to assume that the judgment offers extra protection from prosecution only in cases of obstruction. This is perhaps why several XR protesters at the science museum on Sunday 29 August glued their hands together through the railings, to cause disruption while avoiding damage to museum property.

Even in obstruction cases, the Ziegler judgment does not purport to offer protesters carte blanche to carry out disruptive actions. They will still need to satisfy a proportionality test. In the context of the Impossible Rebellion, for example, a court might consider that, while blocking the access road to the Excel centre for 90 minutes to protest against the DSEI arms fair was lawful, occupying Oxford Circus for several days was not. The nature of the protesters’ cause is also unlikely to be a deciding factor in whether or not they ultimately face convictions, although we have seen that juries are perhaps more willing than appellate courts to factor moral arguments about the seriousness of the climate crisis into their decision-making. It seems probable that most judges would consider climate change to be an issue of importance, but the other logistical considerations set out by Lord Neuberger in City of London Corpn v Samede will likely be of greater significance in determining the outcome of any potential prosecutions arising out of the latest round of XR protests.

As of Saturday 4 September the number of arrests during the Impossible Rebellion stood at 508, for a variety of offences, including a number of activists who covered the Queen Victoria Memorial outside Buckingham Palace with red paint and others who breached a Section 14 order imposed by the Metropolitan Police, requiring them to vacate Oxford Circus, where they had erected a giant pink table. This constitutes fewer arrests than during previous rounds of XR protests, but it has been suggested in the press that this might be attributable to the smaller overall number of activists taking part in more fluid actions than the mass occupation of static sites that the group coordinated in 2019. Scotland Yard has publicly adopted a rather combative tone, with the Met Deputy Assistant Commissioner Matt Twist calling the protests “unfair, unreasonable and unlawful”.

XR activists occupy Waterloo Bridge (April 2019).

The real impact of DPP v Ziegler may be seen in how many arrestees are ultimately charged. According to their own website, previous XR protests have seen approximately 10% of arrestees go on to face charges. It will be interesting to see whether the proportion remains the same for the latest actions. If there is a noticeable decrease, perhaps we may begin to say with more confidence that the Ziegler judgment has had a tangible prospective impact on the ability of individuals to exercise their Convention rights, as well as a retrospective impact on prior convictions. It also remains to be seen whether any previous convictions for offences other than obstruction of a highway may stand to be overturned as a result of the ruling.

To conclude with the question with which this piece opened: is DPP v Ziegler a red herring, a new dawn, or something in between? While the common law is inherently incremental in its approach and it is a rare case indeed which constitutes a total watershed, this one does feel significant. It suggests that the approach of the appellate courts might be converging to some extent with the generally more lenient approach taken by many juries in recent environmental protest cases. It may not lead to a radical shift in policing strategies, but it does suggest that the balance between the rights of individuals to freedom of expression and assembly and the rights of members of the wider community to carry out their business unobstructed may have shifted slightly. But, to echo the apocryphal comments of Zhou Enlai on the French Revolution, perhaps it is simply too early to say.

What I’ve been reading this week…

I do hope you have enjoyed this first post from Green and Pleasant Blog. Next week, Sam Groom will be writing about animal law. In the meantime, I will leave you with what I have been reading this week.

After a summer spent revisiting the works of Charles Dickens, many of which I read and enjoyed as a teenager, I have finally made it back to Bleak House. Not only is it one of Dickens’ longest and most intricately plotted novels, but it is also the most concerned with the legal system. Both the book’s many tangled plot threads and the lives of its vast cast of characters revolve around a particularly intractable case in the Court of Chancery, and Dickens is at his most trenchant in his critique of lawyers and the courts. Bleak House is a deeply impressive novel, with an excellent 2005 mini-series to enjoy afterwards; though perhaps not the perfect Christmas gift for the aspiring lawyer in your life!