Private parts – Nearly Legal

Posted April 12th, 2016 in housing, human rights, judicial review, news by sally

‘Ever since R (Weaver) v London and Quadrant Housing Trust [2010] 1 WLR 363 (our report) there has been an ongoing issue as to whether housing associations (or specific housing associations) were public bodies both for the purposes of the Human Rights Act and public law/judicial review.’

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Nearly Legal, 10th April 2016

Source: www.nearlylegal.co.uk

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Equality claims and health regulators – Availability of JR does not oust jurisdiction of ET – UK Human Rights Blog

‘Michalak v The General Medical Council & Ors [2016] EWCA Civ 172: This important case deals with the remedies available to individuals who claim to have suffered from discrimination, victimization, harassment or detriment in the treatment they have received from a “qualifications body” under s.53 of the Equality Act 2010 viz. any authority or body which can confer a relevant qualification (e.g. the GMC, ACCA etc.). It also clarifies the understanding of the place of judicial review in the context of internal and statutory appeals in cases of alleged discrimination contrary to the Equality Act 2010.’

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UK Human Rights Blog, 11th April 2016

Source: www.ukhumanrightsblog.com

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Junior doctors’ row: Government hit with second legal challenge over contracts – BBC News

‘A second legal challenge has been made over the government’s decision to impose a new contract on junior doctors in England.’

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BBC News, 4th April 2016

Source: www.bbc.co.uk

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General Medical Council v Michalak – WLR Daily

General Medical Council v Michalak [2016] EWCA Civ 172

‘The claimant doctor made a complaint of discrimination against the respondent General Medical Council, alleging that, as a qualifications body, it had subjected her to a detriment in the course of its Fitness to Practise Panel procedure, contrary to section 53(2)(c) of the Equality Act 2010. At a preliminary hearing to determine whether the employment tribunal had jurisdiction under section 120 of the Act, an employment judge held that the claim was not excluded by section 120(7), as the act complained of was not subject “by virtue of an enactment” to “an appeal or proceedings in the nature of an appeal”, since there was no right of appeal under the Medical Act 1983 from a decision of the panel, nor did judicial review provide a means to challenge its decision. The Employment Appeal Tribunal allowed the General Medical Council’s appeal, holding that judicial review proceedings were proceedings “in the nature of an appeal” that arose “by virtue of an enactment”, namely section 31 of the Senior Courts Act 1981, that were available to the claimant, thereby precluding the jurisdiction of the employment tribunal.’

WLR Daily, 23rd March 2016

Source: www.iclr.co.uk

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Regina v Roberts (Mark) and others- WLR Daily

Regina v Roberts (Mark) and others [2016] EWCA Crim 71

‘In each of the 13 applications before the court, the applicants applied for an extension of time in which to apply for leave to appeal against sentences of imprisonment or detention for public protection (“IPP”)), imposed between 2005 and 2008 under the Criminal Justice Act 2003. Before the sentence of IPP was amended by the Criminal Justice and Immigration Act 2008, the court was required to make the assumption that an offender was dangerous if he had been convicted on an earlier occasion of a specified offence, unless it was unreasonable to do so. Where he was found to be dangerous, and over 18, the court was required to pass a sentence of IPP or life imprisonment; the 2003 Act removed all discretion from the court once it was found that the offender was dangerous. All the applicants had either been detained in custody long after the expiry of the minimum term or had been recalled for breach of licence. The applicants submitted (1) that whatever might have been the position at the time the sentences of IPP were passed, the Court of Appeal had power under section 11 of the Criminal Appeal Act 1968 to pass sentences that, in the light of what had happened over the intervening years, now would be the proper sentence; (2) the Court of Appeal should reconsider the assessments made by sentencing judges in the light of R v Lang [2005] EWCA Crim 2864; [2006] 1 WLR 2509, and (3) a time could and had been reached when the length of the imprisonment was so excessive and disproportionate compared to the index criminal offence that it could amount to inhuman treatment under article 3 or arbitrary detention under article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. That was because the detention no longer had any meaningful link to the index offence. A much delayed review of a sentencing decision could therefore be a mechanism the court could employ to avoid a breach of those Convention Rights. As the period now served by each of the applicants was so much longer than any conceivable determinate sentence would have required, the continued detention amounted to preventative detention and was therefore arbitrary. ‘

WLR Daily, 18th March 2016

Source: www.iclr.co.uk

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Regina (Watch Tower Bible & Tract Society of Britain and others) v Charity Commission – WLR Daily

Regina (Watch Tower Bible & Tract Society of Britain and others) v Charity Commission [2016] EWCA Civ 154

‘Following three trials of former members of Jehovah’s Witnesses’s congregations on charges of historic sex abuse the Charity Commission decided to initiate a statutory inquiry relating to a leading Jehovah’s Witness charity’s safeguarding policy regarding vulnerable beneficiaries in particular children, under section 46 of the Charities Act 2011, and to order the charity to produce a wide range of documents, under section 52 of the Act, even though none of those accused was connected with the charity. .The applicants, the charity and its trustees, sought judicial review of those decisions, on the grounds that (i) the commission had acted disproportionately by commencing an inquiry the scope of which was vague and undefined and by interfering with the applicants’ Convention rights, and had thereby breached its duty to act fairly so that the decision was irrational; and (ii) the scope of the production order was disproportionate in that information was sought of a personal and sensitive nature, within the meaning of the Data Protection Act 1998, and was furthermore in breach of the Convention rights of individuals affected. The judge in refusing permission to proceed with the judicial review clain held that the applicants had an effective statutory remedy by appealing to the First-tier Tribunal (General Regulatory Chamber) (Charity) against a decision to initiate an inquiry, and that any complaint relating to the breadth of a production order could be dealt with before that tribunal.’

WLR Daily, 15th March 2016

Source: www.iclr.co.uk

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Family member of EU national awarded £136,000 damages against Home Office – Free Movement

‘A High Court judge has awarded the family member of an EU national a total of £136,048 in damages. The award consists of £76,578 for false imprisonment and £59,470 for breach of EU law. The Home Office is also criticised for having made “inaccurate and misleading” submissions to previous judges on multiple occasions and the damages include not just compensatory damages for lost earnings and distress but also special damages, aggravated damages and exemplary damages.’

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Free Movement, 30th March 2016

Source: www.freemovement.org.uk

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Byron Karemba: The Investigatory Powers Bill: Introducing Judicial Authorisation of Surveillance Warrants in the United Kingdom – Putting the ‘Double-Lock’ in Focus (Part I) – UK Constitutional Law Association

‘When the Home Secretary commended the Draft Investigatory Powers Bill for pre-legislative scrutiny in November 2015, she lauded the oversight mechanisms in the Bill as ‘world-leading.’ A seminal feature of this new regime is the creation of a single Investigatory Powers Commissioner (IPCr) who is aided by a set of Judicial Commissioners (JCs) in exercising both ex ante and ex post facto oversight over the use of a range of surveillance measures. The IPCr will replace the existing fragmented (RIPA Part VI) framework of the Intelligence Services Commissioner, the Office of Surveillance Commissioner and the Interception of Communications Commissioner whom hitherto have (largely) conducted ex post facto oversight functions.’

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UK Constitutional Law Association, 22nd March 2016

Source: www.ukconstitutionallaw.org

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Holmcroft: Skilled person not amenable to judicial review – Henderson Chambers

Posted March 22nd, 2016 in banking, financial regulation, fraud, judicial review, negligence, news by sally

‘On 24 February 2016, in R (Holmcroft Properties Limited) -v- KPMG LLP and others, the Divisional Court dismissed Holmcroft’s judicial review challenge to the skilled person’s role in a mis-selling redress scheme. The skilled person, KPMG, had approved Barclays’ rejection of Holmcroft’s claims for consequential losses it claimed to have suffered as a result of the mis-sale. The court found that the skilled person was not amenable to judicial review and that, in any event, it had acted fairly.’

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Henderson Chambers, 3rd March 2016

Source: www.hendersonchambers.co.uk

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MoJ to urgently review legal aid for trafficking victims – Law Society’s Gazette

Posted March 22nd, 2016 in judicial review, legal aid, news, trafficking in human beings by sally

‘The Ministry of Justice will urgently review its provision of legal aid for people bringing claims for compensation against their traffickers, in response to a judicial review of the current scheme.’

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Law Society’s Gazette, 21st March 2016

Source: www.lawgazette.co.uk

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EU referendum: Expats challenge 15-year voting restriction – BBC News

‘Two expats are challenging a decision to bar British citizens who have lived elsewhere in Europe for more than 15 years from voting in the EU referendum.’

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BBC News, 15th March 2016

Source: www.bbc.co.uk

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Regina (Orbital Shopping Park Swindon Ltd) v Swindon Borough Council – WLR Daily

Posted March 7th, 2016 in interpretation, judicial review, law reports, local government, planning by tracey

Regina (Orbital Shopping Park Swindon Ltd) v Swindon Borough Council: [2016] EWHC 448 (Admin)

‘The claimant submitted two separate planning applications to the defendant: one for the installation of a mezzanine floor at its property; and the other for external works to the property, which created no additional floor space. The defendant granted planning permission for both applications, informing the claimant that the mezzanine installation was development liable to a community infrastructure levy (“CIL”). The defendant’s view was that the development proposals fell within the scope of the meaning of development for CIL purposes due to the direct link between the two applications for the mezzanine and external alterations. The defendant, as the relevant CIL collecting authority, subsequently issued a CIL liability notice under regulation 65 of the Community Infrastructure Levy Regulations 2010 in relation to the installation of a mezzanine floor and external alterations at the claimant’s property, and a demand notice under regulation 69 of the 2010 Regulations in respect of the same development. By a judicial review claim the claimant challenged the lawfulness of the defendant’s act in issuing the two notices on the grounds that the mezzanine planning permission fell within the exemption created by regulation 6(1)(c) and that the external planning permission created no floor space and so was not liable to a CIL.’

WLR daily, 3rd March 2016

Source: www.iclr.co.uk

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BMA ignored lawyers’ advice before launching judicial review over new contracts for junior doctors – Daily Telegraph

Posted March 1st, 2016 in contracts, doctors, industrial action, judicial review, news by sally

‘The British Medical Association ignored the advice of its own lawyers before launching a judicial review over new contracts for junior doctors, it has emerged.’

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Daily Telegraph, 29th February 2016

Source: www.telegraph.co.uk

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Challenging Government Decisions a Pain in the Neck – Henderson Chambers

‘On 11 December 2015, Cranston J gave Judgment in Speed Medical Examination Services Limited v Secretary of State for Justice [2015] EWHC 3585 (Admin). Cranston J held that the Defendant’s reforms in respect of the system for obtaining medical reports in whiplash cases was not open to challenge on grounds of irrationality or its purported anticompetitive effects.’

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Henderson Chambers, 3rd February 2016

Source: www.hendersonchambers.co.uk

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Junior doctors launch legal challenge to Jeremy Hunt’s decision to impose new contract – The Independent

‘Junior doctors have a launched a legal challenge to Jeremy Hunt’s decision to impose a new contract, and announced that three fresh strikes will hit the NHS in the spring.’

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The Independent, 23rd February 2016

Source: www.independent.co.uk

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High Court dismisses judicial review challenge to HMRC’s decision to restrict the availability of the Liechtenstein disclosure facility – RPC Tax Take

Posted February 22nd, 2016 in disclosure, HM Revenue & Customs, judicial review, news, taxation by sally

‘In R (on the application of City Shoes Wholesale Ltd) v Revenue & Customs Commissioners [2016] EWHC 107 (Admin), the High Court rejected an application for judicial review of HMRC’s refusal to grant the nine claimants, all of whom had operated employee benefit trusts (EBTs), the full benefits of the Liechtenstein disclosure facility (LDF). The court dismissed the claimants’ application for judicial review on the basis that their applications were never registered and therefore they had no legitimate expectation to receive full benefit of the LDF, and there had been no abuse of power or error of law by HMRC.’

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RPC Tax Take, 18th February 2016

Source: www.rpc.co.uk

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Jake W. Rylatt and Joseph Tomlinson: Neuberger’s Novelties: Keyu and the Substantive Review Debate – UK Constitutional Law Association

Posted February 18th, 2016 in inquiries, judicial review, news, proportionality by sally

‘Over the past few decades, the question of substantive review has provided one of the liveliest debates in public law. However, despite a myriad of contributions from courts and legal commentators, we are still left with little certainty as to its nature, scope, and structure. As we near 70 years since Lord Greene’s landmark decision in Wednesbury, and despite some interesting and innovative recent additions to the debate, a distinct sense of fatigue has begun to set in.’

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UK Constitutional Law Association, 17th February 2016

Source: www.ukconstitutionallaw.org

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Ministers seek to stop procurement boycotts through new guidance – Local Government Lawyer

‘Public procurement should never be used as a tool to boycott tenders from suppliers based in other countries, “except where formal legal sanctions, embargoes and restrictions have been put in place by the UK Government”, ministers have said in new guidance.’

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Local Government Lawyer, 17 February 2016

Source: www.localgovernmentlawyer.co.uk

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Judicial Review: What is meant by “totally without merit” – UK Human Rights Blog

Posted February 16th, 2016 in appeals, immigration, judicial review, news by sally

‘What is the difference between a case that is “totally without merit” and one that is “not arguable”? Are either of those more or less hopeless than a case that is “bound to fail”?’

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UK Human Rights Blog, 15th February 2016

Source: www.ukhumanrightsblog.com

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Failing on systematic failings – Nearly Legal

Posted February 15th, 2016 in homelessness, housing, judicial review, local government, news, statutory duty by sally

‘This was a quite extraordinary judicial review (or rather four joined judicial review claims with another 16 cases put in evidence in support) in which what was in the end at stake was not any remedy for the individual claimants – it was agreed that their individual issues had been remedied and the claims were academic on that basis – but whether there were systemic failings in Birmingham’s handling of homeless applications such that Birmingham:

generally, discourage and divert applications so that individuals are denied their statutory rights to have their situation properly inquired into and be given interim accommodation whilst those inquiries are being made.’

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Nearly Legal, 14th February 2016

Source: www.nearlylegal.co.uk

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