The Public Sector Equality Duty … another successful challenge to service re-provisioning

Published May 10, 2012 Uncategorized Leave a Comment

The English High Court as ruled that Surrey County Council breached its public sector equality duty by agreeing to introduce a plan to replace professional librarians with local volunteers, as part of its plans to replace existing library services with services to be delivered via community partnership models.

The judge, Mr. Justice Wilkie acknowledged that the Council was under “intense pressure” to reduce spending – it had to make £59.3m savings this financial year. Many local authorities are, of course, in a similar position and are examining how savings might be achieved through alternative models of service delivery. This judgment reinforces the message that equalities considerations must be at the heart of local authority decision making in relation to such matters.

The claimants were two local residents, who argued that the Council had failed to give due regard to the equality implications of the community partnership model as a consequence of which the Council had failed to comply with the Public Sector Equality Duty that is laid down by s149 of the Equality Act 2010.

The claimants were concerned that the Council had failed to have proper regard to the “obvious equality issue of the need for training for volunteers, other than by means of broad and obvious statements of the need to provide ongoing support”. They led witnesses in support of their claims that volunteers would not be sensitive to the needs of elderly and disabled service users. The judge noted that the claimants were concerned “about the lack of continuity where a large number of volunteers are rostered to work in libraries in place of regular staff who know their regular customers and their requirements”.

The Court expressed the view that due regard to the “obvious” equality issue of volunteer training required, at the least, a “rigorous consideration” of the Council’s  “thinking on that issue” and that “bland assertions” that training would be required and monitored fell “substantially short” of the due regard requirement.

Mr. Justice Wilkie acknowledged that “it is not necessary for a local authority to consider such issues to the nth degree of detail or ad infinitum, but a summary of what, it was now anticipated, the training needs would be and how they might be met was, in my judgment, an irreducible minimum to enable the cabinet to give this issue due regard at that stage.” and concluded that the decision was unlawful

The judge ruled that the Council’s decision was unlawful. However it will be May before he issues a view on what should happen next. At the end of the day, the outcome of this case may prove to be a short lived and pyrrhic victory for the claimants. The Council may prove to be determined to push ahead with the adoption of the community partnership model and it may yet do so by adopting an approach in which due regard is had to the Public Sector Equality Duty. However, the Council will have endured additional costs as a consequence of the outcome of the case, and it is also likely that the Council will have achieved less in the way of savings as a consequence of the delay in implementing its proposals.

Potentially, a more damaging legacy may be the risk of impoverished relations between the Council and affected sections of the local community. That would, in my view, be a pity as the Court acknowledged that awareness of equality issues was fully integrated into the Council’s corporate culture. This case serves as a reminder that Equality Impact Assessments are not tick box exercises and that they ought to involve a proper analysis of the issues. This is not the first case in which the Courts have made it clear that “due regard” requires an active consideration of the issues. Council and committee reports should therefore remind of elected members of the Public Sector Equality Duty and minutes should record that they have indeed given due regard to the issues.

Jackie McGuire

 

Independence, and the Impartial Electoral Commission

Published May 8, 2012 Judicial Review , Parliamentary , Regulatory / Business Crime Leave a Comment

The Scottish Affairs Committee has today published its Report on the Scottish Government’s proposed independence referendum question:-

Do you agree that Scotland should be an independent country?

The Committee, which is a UK Parliament Select Committee, concludes, without a hint of remorse, that this question is biased towards a “Yes” answer.  You can read the full Report here. 

The Committee cites with approval the evidence of Professor Vernon Bogdanor: “The players should not also be the referee”, and states that the Electoral Commission is the appropriate body to regulate the wording of the referendum question.  It can be given powers under the Political Parties, Elections and Referendums Act 2000 to test a proposed question.

The Committee recommends that the parties in the Scottish Parliament agree on a question or range of questions to refer to the Electoral Commission.  Failing that, individual parties or groups of parties should submit questions to the Commission and agree in advance to accept the Commission’s advice.

From a distance this does appear to be another move in the chess game that is the Referendum on Independence:  Westminster suggests (independent and impartial) Electoral Commission test and approve referendum question.  How can the SNP (reasonably) disagree with this proposal? 

If a question (or questions) was referred in this way, could an aggrieved political party bring a legal challenge to the eventual advice of the Electoral Commission?  Almost certainly, but the prospect of such a challenge would surely be unpalatable to the neutral observer.  If such a person exists.

And both supporters and opponents of independence may be interested to note that the Select Committee’s proposals appear to leave the door open to the Electoral Commission approving more than one question on the ballot paper.  Your move Scottish Government.

Paul Marshall

Defining “personal data” – like nailing jelly to a wall

Published April 26, 2012 Data Protection , Freedom of Information 1 Comment
Tags: , , ,

Here’s a phrase you won’t hear very often: the Information Tribunal has recently issued an interesting decision. (I of course use the word “interesting” the way all lawyers use it, which is to say quite wrongly. I also use the term “Information Tribunal” quite wrongly, as it is of course now the First-Tier Tribunal (Information Rights).)

The decision, involving the Financial Services Authority, concerns personal data – that most vexing of subjects – and in particular the interaction between Freedom of Information and the Data Protection Act. In this case, the Tribunal overturned a decision of the (UK) Information Commissioner, who had decided that the names of junior members of FSA staff could be withheld under section 40 of the (UK) Freedom of Information Act 2000 (the personal data exemption, equivalent to section 38 of FOISA) because the names were personal data and their disclosure would not be compatible with the data protection principles. The Tribunal decided that the names were not in fact personal data, relying on the 2003 Court of Appeal decision in Durant v FSA to conclude that the information was not “biographical in any significant sense”, and that the individuals were not the “focus of the information”. The Tribunal then seemed to add a new test of its own, explaining that it did not consider that the information ”adversely affects the individuals’ privacy, whether in their personal or family life, business or professional capacity” (an innacurate paraphrase of Auld LJ’s decision in Durant, adding the word “adversely” in a way that dramatically changes the test he set out).

No doubt this outcome will surprise FOI and Data Protection practitioners, not to mention make them question the expensive training they received from their expensive lawyers, since the message (from us and others) has consistently been that Durant is of limited value in light of subsequent decisions such as the House of Lords’ 2008 decision in Common Services Agency v Scottish Information Commissioner (in which we acted for the Commissioner). While the Lords did not expressly disapprove Durant, they did choose to depart from it and approach the issue from an entirely different angle.

Indeed, it would seem that the limited value of Durant in cases like this was so well-established that the Information Commissioner felt no need to address it in this case - paragraph 31 of the Tribunal’s decision is below, with some … er … respectful observations interspersed:

“Durant is a decision of the Court of Appeal and the Tribunal is bound by it [unless a higher court has taken a different approach, such as in the CSA case], although we would acknowledge that there has been some variation in exactly how it has been applied in different cases that have come before the Tribunal [not to mention the Court of Session, High Court, Court of Appeal, House of Lords...]. Curiously, the Decision Notice is entirely silent about the application of Durant to the present case, and the Commissioner has also been silent about his own guidelines contained in the “Data Protection Technical Guidance Determining What Is Personal Data” [a 2007 document which pre-dates the Lords' CSA decision and begins "We have been aware for some time of the need to replace our guidance on the implications of the Durant judgement."].”

As David Frost used to say, the clues are there.

In its defence, the Tribunal does not seem to have been referred to the Common Services Agency decision or addressed on why Durant might no longer be useful authority. We would nevertheless be surprised if the Information Commissioner does not appeal this decision, so its ultimate effect may be that the question of defining “personal data” makes it back to the Court of Appeal, or even that Durant is finally tackled head-on by the Supreme Court. Either way, it will hopefully result in a more helpful approach to the issue than Durant did.

In the meantime, Scottish public authorities should keep in mind that Tribunal decisions are not binding on them or on the Scottish Information Commissioner. The Commissioner is therefore unlikely to change her approach from that set out in her helpful guidance on the personal information exemption, which is helpful largely because it ignores Durant in favour of the more authoritative Common Services Agency decision, and thus vindicates that expensive training I mentioned earlier… 

Charles Livingstone

Fine words butter no parsnips – media access to court documents

Published April 18, 2012 Freedom of Information , Human Rights , Media Leave a Comment

Back in February I blogged about the BBC’s success in gaining access to productions in a criminal trial in Scotland.  As I mentioned in my blog, the position is different in England and Wales because a CPS protocol says that prosecution material which has been relied upon by the Crown in court should normally be released to the media.   Nonetheless, issues over access to documents in court can still arise where the documents sought are the written arguments of the lawyers presenting the case and the supporting documents they refer to in making their arguments.  Earlier this month in R (o.t.a Guardian Newspapers) v. City of Westminster Magistrates Court, USA as Interested Party, the Court of Appeal ruled that with due regard to the principle of open justice the default position is that there should be access to court documents.  Where access is sought for proper journalistic purposes, the case for allowing it will be particularly strong.

The Guardian applied for access to documents relating to the extradition proceedings of a London solicitor and a former executive of Halliburton accused of bribery.   The Guardian had been present in court but refused access to the written arguments submitted by the USA and the defendants, affidavits supporting the extradition, and various other letters and documents.    Although the case was heard in an open court the Guardian argued that the increasing use of written arguments makes it difficult for the media to follow complex cases in an open court without having access to the written arguments and corresponding documents.

Interestingly, in reaching their decision to allow access, the Court of Appeal relied more on the common law than European human rights case law – in particular case law relating to Article 10 of the Convention which protects freedom of expression.   Toulson LJ who gave the leading judgement noted that, “The development of the common law did not come to an end on the passing of the Human Rights Act” and that “…I base the decision on the common law and not on article 10.”   Also of note was Toulson LJ’s observation that section 32 of the Freedom of Information Act, which excludes access to court documents, was irrelevant in this case.  His reasoning was that Parliament should not be taken to have legislated to limit or control the way in which the court decides a question affecting openness, unless the language of the statute makes it plain beyond possible doubt that this was Parliament’s intention.

With written arguments from lawyers just as common in the courts of Scotland it will be interesting to see what use, if any, the Scottish media make of this decision.

Niall Mclean

Is it necessary to litigate to appropriate? Portobello Park Action Group Association for Judicial Review of a decision of City of Edinburgh Council [2012] CSOH 38

Published March 22, 2012 Local Government , Uncategorized Leave a Comment

 The Outer House of the Court of Session has ruled against an attempt by Portobello Park Action Group Association (“PPAG”) to challenge the legality of the City of Edinburgh Council’s decision to appropriate part of Portobello Park to build a school.   The case concerned the appropriation of inalienable common good land. 

PPAG sought to challenge the decision on the grounds that there is no power to appropriate inalienable common good land, and even if there was, the exercise of that authority required the consent of the court, although subsequently PPAG dropped the second limb of their argument and relied wholly upon their argument regarding the absence of  a power to appropriate.

Lady Dorrian upheld the Council’s plea of mora on the basis that there had been “..a considerable delay in bringing this petition”  and dismissed the petition.  Lady Dorrian found that PPAG could not rely on what was described as a “climate of opposition” to avoid any argument of delay and the decision challenged was made at the latest by March 2010.  Thus in Lady Dorrian’s opinion the gap between March 2010 and when the challenge was bought in July 2011 was “indicative of taciturnity and acquiescence”. 

While it was not necessary for Lady Dorrian to deal with the merits of the case on the basis that the plea of mora was established, her ladyship thought it appropriate to express her view which was that the Council does have power to appropriate inalienable common good land.  

The Judgment can be accessed through the attached link.

Joint consultation announced on regulating health and social care professionals

Published March 5, 2012 Health , Parliamentary Leave a Comment

On 1 March the Law Commissions of Scotland, England & Wales, and Northern Ireland published a joint consultation seeking views on how the regulation of health care professionals in the UK and social workers in England can be made clearer, simpler, more modern and more consistent.  This is the first ever joint project involving all three law reform bodies and you can read the detail of the consultation in the press release and summary here.  The Commissions seek responses by 31 May 2012.

The consultation document is a midnight-oil-demanding 296 pages so we will report back in more detail once we have had the time to digest it in full.  In the meantime the headline is that the Law Commissions are proposing a single Act of Parliament to provide the legal framework for all of the health and social care regulators forming part of the consultation.  Interestingly from a Scottish perspective some regulation of professional groups is devolved to the Scottish Parliament and some reserved to the Westminster Parliament.  The Law Commissions are proposing to give the UK Government regulation-making powers in relation to health care professionals.  Any proposed use of those powers in respect of a profession for which the Scottish Parliament has legislative competence would have to be consulted on by the Scottish Ministers and laid before both Parliaments before having any effect.

Niall Mclean

Notice of Intended Prosecution – You are advised to take advice

Published February 19, 2012 Regulatory / Business Crime Leave a Comment

Former UK cabinet minister Chris Huhne and his ex-wife Vicky Pryce both appeared in court last week to face charges of attempting to pervert the course of justice. The Crown’s position is that Ms Pryce allegedly accepted responsibility for a speeding offence in order to spare Mr Huhne penalty points on his licence.

This high profile case brings home the importance of taking specialist legal advice when a driver receives a Notice of Intended Prosecution (NIP). Receipt of a NIP is typically the first indication that a driver is about to face proceedings for a road traffic offence.

A warning of the possibility of prosecution must have been issued at the time of the alleged offence or a NIP must be sent to the driver or registered keeper within 14 days.

It is standard practice for the police to simply issue the NIP verbally at the time of the alleged offence. Alternatively the NIP can be sent by post and road traffic legislation details the various acceptable methods of service. These are matters that should be meticulously checked as a failure to properly serve the NIP can be fatal to the entire proceedings.

We regularly deal with cases where there is genuine doubt as to who the driver was at the time of the alleged road traffic offence. In such cases, it is important to note tha there is a statutory defence where a person can show that they do not know and could not with reasonable diligence have ascertained who the driver of the vehicle was at the material time.

If you have received a NIP it is crucial that you seek specialist legal advice. Where there is doubt as to the identity of the driver, further enquiry is clearly needed. As the case against Mr Huhne and Ms Price shows, making an alleged false admission in respect of a NIP is an altogether far more serious matter.

Contact us if you need more information on any aspect of motoring offences.

BBC prevail in Supreme Court FOI case

Published February 17, 2012 Freedom of Information , Human Rights , Media Leave a Comment

This week the Supreme Court unanimously dismissed an appeal from the Court of Appeal in the case of Sugar v BBC.   The Appellant in the case Mr Sugar, (now deceased and represented by his widow Fiona Paveley) had waged a 6 year battle to secure access to an internal BBC briefing document produced in response to concerns over the impartiality or otherwise of the Corporation’s coverage of the Israeli-Palestinian conflict.  In response to these concerns the BBC commissioned Malcolm Balen to produce a report on the issue and the briefing document entitled “Taking Forward BBC Coverage of the Middle East” represented the fruit of his labours.  Mr Sugar wanted to see it.

Mr Sugar applied to the BBC for the release of the briefing under section 1 of the Freedom of Information Act 2000 (FOIA) without success.  The Information Commissioner, the Information Tribunal and the Court of Appeal all subsequently sided with the BBC in dismissing Mr Sugar’s appeals against the decision.  The Supreme Court has now reached the same conclusion.  The basis for the decision is to be found in Part VI of Schedule 1 to the FOIA which provides that the BBC is only subject to the requirements of the Act “in respect of information held for purposes other than those of journalism, art or literature”.  The Supreme Court agreed with the Court of Appeal that this excluded from the FOIA any information held by BBC which was “to any significant degree for the purposes of journalism“.  The Court made clear that this would be the case even where information was also held for other purposes. 

Finally, the Court dismissed Mr Sugar’s argument that the briefing should be released under Article 10 of the European Convention of Human Rights.  The Court held that Article 10 ECHR only prevented the State from “restricting a person from receiving information that others are willing to impart to him”.  Article 10 ECHR did not require the BBC to release information of its own motion.  Consequently, there was no breach of Mr Sugar’s right to receive information in a case such as this one where a public authority was acting consistently with domestic legislation in refusing access to documents.  The contents of Mr Balen’s report will thus remain for BBC eyes only.

Colin McIntyre

 

Chris Huhne and pre-trial publicity

Published February 3, 2012 Uncategorized Leave a Comment

I’d imagine Chris Huhne feels as if the sky is falling on him today.  News that he will face a charge of perverting the course justice is announced live on TV.  And within the hour he is tendering his resignation from the cabinet.

Keir Starmer QC, the Director of Public Prosecutions, and Head of the Crown Prosecution Service in England and Wales, announced the decision to prosecute Chris Huhne at a televised press conference.  (Before I go further, I should remind everyone that Scotland has its own criminal law and procedure, and that in Scotland the senior prosecutor is the Lord Advocate as Head of the Crown Office and Procurator Fiscal Service.) 

You can read Mr Starmer’s full statement here.  I do appreciate that this statement is concerned with transparency and accountability, and sets out to explain the time taken to bring a prosecution in this case, but I couldn’t help but alight on the DPP’s concluding remarks:-

“Can I remind all concerned that Mr Huhne and Ms Pryce now stand charged with criminal offences and that they each have a right to a fair trial. It is very important that nothing is said, or reported, which could prejudice their trial.”

What does it matter? 

In Scotland prejudicial pre-trial publicity can be used by the defence to stop a prosecution in its tracks.  This can lead to a trial being delayed or postponed, but it can also mean the end of the prosecution altogether.  The argument runs that such has been the pre-trial media coverage of a case, that it’s simply not possible for the accused person to get a fair hearing from a jury. 

The Scottish Courts take a sceptical approach to such arguments, and start from the position that as long as a jury is given proper advice or directions by the trial judge, these should be able to overcome any risk of prejudice.  The test was set out by Lord Justice-General Emslie in Stuurman v HM Advocate (1980) as “whether the risk of prejudice is so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it”.

Which brings us back to the statement made by the DPP today.  I’m not suggesting that this statement – had it been made in Scotland by the Lord Advocate, live to the television cameras and assembled media – would of itself have provided the basis for a successful prejudicial pre-trial publicity plea. 

But I do wonder whether announcing the decision to prosecute in this manner was really the best way to protect against prejudicial pre-trial publicity.  I do wonder whether announcing the decision to prosecute in this manner has in fact greatly increased the risk of prejudicial pre-trial publicity…

Paul Marshall

A new dawn? BBC gain access to Crown productions

Published February 2, 2012 Judicial Review , Media Leave a Comment

Last month Kimberely Hainey was found guilty of murdering her infant son and sentenced to life imprisonment.  Given the nature of the crime there was significant public interest in the trial and it was widely reported in the media.   The BBC approached the Crown Office to request four photographs for use as part of their reporting of the case.  That request was refused.   Unlike in England and Wales there is no protocol for the release of productions from criminal cases to the media in Scotland.

On 5 January the BBC petitioned the High Court seeking access to the four photographs from the Lord Advocate (who is responsible for the prosecution of crime in Scotland).  The petition was dismissed as incompetent on the grounds that the special power invoked by the BBC, known as the nobile officium, is only available to deal with circumstances in the course of criminal business which are “extraordinary or unforeseen, and where no other remedy or procedure is provided forby the law”.  Lord Carloway took the view that whilst the nobile officium wasn’t open to the BBC, they did have two other options; 1. approach the trial judge for access to the productions; or 2. judicially review the Lord Advocate’s refusal to release them.  More on option 2 shortly.

Heeding Lord Carloway’s advice the BBC applied to the trial judge on 9 January.   On 12 January Lord Woolman granted access to the photographs for use by all sections of the media.   You can read the full decision here and I don’t intend to review it at length.  Suffice to say it is a significant step for media freedom in Scotland.  In the absence of a protocol with the Crown it sets a clear precedent for allowing the media access to productions when reporting high profile crimes.  Of course, such access will not come without limits and there will no doubt be cases where release of productions is inappropriate.  That said,  it is a decision that ought to benefit all sections of the media and could herald a new dawn in the reporting of criminal trials in Scotland.

What is particularly interesting is the second option put forward by Lord Carloway.  Judicial review of the Lord Advocate has historically been very difficult, particularly in the context of decisions made by him or her about the prosecution of crime.   Unfortunately neither judge expressed a view as to the circumstances in which a judicial review of the Lord Advocate in would be successful.    The availability of judicial review against the Lord Advocate is going to be addressed by Professor Tom Mullen of Glasgow University in a lecture to be delivered by him tonight in conjunction with the Murray Stable.

Niall Mclean

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