Cornerstone Barristers
13 Experts
33 Contributions by Cornerstone Barristers Experts
PRACTICE NOTES
Where a UK court or tribunal is confronted with an issue engaging a Convention right, it must take into account any judgment or decision of the European Court of Human Rights. In reality, the prevailing judicial approach has been to regard final decisions of the Strasbourg Court as effectively binding unless there is a sound reason to depart. This Practice Note accordingly summarises the core principles governing the standing of Strasbourg jurisprudence in the UK courts.
Background to HRA 1998, s 2
The UK was the first state to ratify the European Convention on Human Rights in March 1951. Until the Human Rights Act 1998, however, the Convention was not part of domestic law, so UK courts lacked authority to give effect to Convention rights (see: R v Secretary of State for the Home Department ex parte Brind). Even so, courts paid regard to
Public Law
PRACTICE NOTES
The Investigatory Powers Act 2016 (IPA 2016)
The Investigatory Powers Act 2016 (IPA 2016) sets the statutory framework for how public bodies may obtain and use communications data, replacing much—though not all—of the earlier regime previously found in the Regulation of Investigatory Powers Act 2000 (RIPA 2000). For a primer on the IPA 2016, see Practice Note: The regulation of intelligence gathering—an introductory guide.
Rules on acquiring and disclosing communications data are contained in IPA 2016, Parts 2 and 3.
IPA 2016 repealed the RIPA 2000 provisions on interception and the acquisition of communications data.
IPA 2016 is supported by the Code of Practice on the Interception of Communications Data and the Communications Data Code of Practice. These Codes are essential reading for relevant public authorities involved in acquiring communications data under IPA 2016, and for
Corporate Crime
PRACTICE NOTES
The European Convention on Human Rights (ECHR)
Adopted by the Council of Europe in 1950, the ECHR sets out rights and freedoms that contracting parties must respect and secure for everyone within their jurisdiction. These include:
life
protection from torture and other inhuman or degrading treatment or punishment
freedom from slavery and forced or compulsory labour
liberty and personal security
a fair trial
prohibition of retroactive penal legislation
respect for private and family life, home and correspondence
freedom of thought, conscience and religion
freedom of expression
freedom of assembly and association
to marry and found a family
an effective remedy for violations of rights—this is not incorporated into UK law by the Human Rights Act 1998 (HRA 1998)
freedom from discrimination in relation to specific rights and
Public Law
PRACTICE NOTES
While the Investigatory Powers Act 2016 (IPA 2016) repealed and superseded most of the Regulation of Investigatory Powers Act 2000 (RIPA 2000), it leaves untouched the framework for the use of covert intelligence sources, which continue to be controlled by RIPA 2000. The Covert Human Intelligence Sources (CHIS) Code of Practice sets out guidance on authorising the use or conduct of CHIS by public authorities under RIPA 2000, s 29, and on Criminal Conduct Authorisations under RIPA 2000, s 29B, together with direction on managing any information obtained under a CHIS authorisation. It should be read alongside the statute when assessing any request for surveillance. All RIPA 2000-related codes of practice are admissible in both criminal and civil proceedings and, where a provision appears relevant to proceedings under RIPA 2000, it must be considered. Public authorities may need to defend
Corporate Crime
PRACTICE NOTES
Public authorities may, in a number of broad ways, be found not to have breached a Convention right. These avenues are contained in the European Convention on Human Rights (ECHR) and, in domestic law, the Human Rights Act 1998 (HRA 1998). This Practice Note considers:
derogations from the Convention rights
reservations to Convention rights
matters within a state’s margin of appreciation
For qualified rights (rather than absolute rights), a public authority will not be in breach if its actions meet the qualifying conditions, ie the interference with the Convention right is justified. For background, see Practice Note: Convention rights—structure of qualified rights.
Derogations from the Convention rights
What is a derogation?
Article 15 of the ECHR allows Member States, in defined circumstances, to depart from the obligation to respect the Convention rights.
The situations in which a contracting state may do so are narrowly
Public Law
PRACTICE NOTES
Part VII of the Housing Act 1996 (HA 1996) establishes the statutory homelessness regime for local housing authorities (LHAs) operating in England and Wales. It outlines the distinct obligations an LHA may owe to different homeless applicants. Inevitably, an LHA requires time to investigate a homeless applicant’s particular circumstances before deciding which duty is owed in law. Certain applicants’ situations are so urgent that accommodation is needed at once, even before the LHA can complete its enquiries. The HA 1996, in defined cases, requires LHAs to secure accommodation on an interim basis. This Practice Note explains the situations in which that interim duty arises and how it is discharged in practice. It also describes the power an LHA has, once its enquiries are concluded, to provide interim accommodation where:
an applicant seeks a review under HA 1996, s 202 of an
Local Government
PRACTICE NOTES
Parliamentary statements of compatibility
The Human Rights Act 1998 (HRA 1998) not only furnishes individuals with a remedy where their European Convention on Human Rights (ECHR) protections have been infringed, it also prompts government and Parliament to scrutinise, during law-making, whether proposed measures align with Convention rights. Under HRA 1998, s 19, a Minister of the Crown in each House must, before a Bill’s second reading, issue a statement confirming that the Bill complies with Convention rights (a section 19(1)(a) statement) or, alternatively, under section 19(1)(b), state that they cannot make such a confirmation, yet the government nonetheless asks Parliament to continue with the Bill. This process aims to ensure that human rights implications are addressed proactively, rather than remedied only after breach. It signals to both Houses the government’s assessment, while allowing Parliament to weigh
Public Law
PRACTICE NOTES
Convention rights
The Human Rights Act 1998 (HRA 1998) took effect in October 2000 and is intended to give effect to the rights set out in the European Convention on Human Rights (ECHR) (the Convention rights). The ECHR is a binding international treaty reflecting the United Nations Universal Declaration of Human Rights 1948. The UK ratified the ECHR in 1951, but it became binding in UK law only with the introduction of the HRA 1998...
Public Law
PRACTICE NOTES
Part 2 of the Housing (Wales) Act 2014 (H(W)A 2014)
Part 2 of the Housing (Wales) Act 2014 (H(W)A 2014) outlines the homelessness legal framework for local housing authorities (LHAs) in Wales. It explains the varying obligations an LHA owes to different homeless applicants. Inevitably, an LHA must investigate an applicant’s circumstances before deciding which duty applies; see Practice Note: Homelessness and threatened with homelessness in Wales. Some applicants’ situations are so urgent that accommodation is required immediately, even before those enquiries can be completed. H(W)A 2014 makes provision, in specified circumstances, requiring LHAs to secure accommodation on an interim basis. This Practice Note sets out when that interim duty arises, how it operates, and how it is discharged. It also describes the power available to an LHA, once its enquiries are finished, to arrange interim accommodation where:
a homeless applicant requests a
Local Government
PRACTICE NOTES
There are three main principles of statutory interpretation relevant to the protection of human rights in the UK:
a statutory obligation in section 3 of the Human Rights Act 1998 (HRA 1998) to construe legislation, so far as possible, in a manner consistent with Convention rights
the presumption that Parliament does not, absent clear wording, curtail fundamental rights — the interpretative ‘principle of legality’
the presumption that Parliament does not intend to enact measures contrary to the United Kingdom's international duties, including under international human rights instruments — the presumption of compatibility
Before the UK left the EU, further presumptions guided the reading of statutes in line with UK obligations stemming from EU law. Although the UK is no longer an EU member, such presumptions may still matter for questions of assimilated law (or issues of retained EU law as it operated in the 2021–23 period).
Public Law
PRACTICE NOTES
For information on the overarching regime overseeing the use of powers under the Investigatory Powers Act 2016 (IPA 2016), see Practice Note: Scrutiny of intelligence gathering and the role of commissioners under the Investigatory Powers Act 2016.
What does the investigate?
The IPT has jurisdiction to examine and resolve complaints relating to the conduct and deployment of covert surveillance by public authorities, including UK intelligence agencies.
Section 65(5) of the Regulation of Investigatory Powers Act 2000 (RIPA 2000), as amended by IPA 2016, provides a detailed catalogue of what amounts to ‘conduct’ for the IPT’s purposes.
In essence, ‘conduct’ covers a public authority exercising covert surveillance powers under IPA 2016 or RIPA 2000, and any activity undertaken by or on behalf of the intelligence services.
By way of illustration, the IPT considers complaints about conduct by or for the police, the Security Service, the Secret
Corporate Crime
PRACTICE NOTES
The Investigatory Powers Act 2016 (IPA 2016)
The IPA 2016 establishes the statutory framework regulating covert surveillance by public authorities, superseding what had previously been largely—though not entirely—set out in the Regulation of Investigatory Powers Act 2000 (RIPA 2000). In May 2021, the Grand Chamber of the European Court of Human Rights delivered its judgment in Big Brother Watch v UK, addressing the historic reliance on RIPA 2000 to authorise bulk interception operations. The Grand Chamber accepted that bulk interception and international data sharing can be necessary in a democratic society, while urging a range of safeguards—such as independent authorisation and protections for confidential material—which are now, for the most part, reflected in the IPA. See News Analysis: Another blow for UK’s intelligence gathering regime (Big Brother Watch and others v the United Kingdom). Where those safeguards required legislative
Corporate Crime
PRACTICE NOTES
Costs of judicial review proceedings
The issue of who bears the expense of court proceedings, and the potential size of that liability, will inevitably be central when deciding whether to issue a claim and, likewise, whether and in what manner to resist one. As a starting point, the costs of judicial review are within the court’s discretion, pursuant to section 51(1)–(3) of the Senior Courts Act 1981 (SCA 1981). That overarching position is shaped by the Civil Procedure Rules, relevant authority, and the specific facts and circumstances of the case at hand. Customarily (though not invariably) costs follow the event; in other words, the successful party will ordinarily recover its costs from the unsuccessful party. The costs in question are those ‘of and incidental to’ the proceedings. In most judicial review claims, the defendant is the public authority whose decision, act, or omission is put in
Public Law
PRACTICE NOTES
The Investigatory Powers Act 2016 (IPA 2016) reshaped the statutory regime governing covert surveillance by public bodies, a regime that was largely, though not entirely, contained in the Regulation of Investigatory Powers Act 2000 (RIPA 2000). Local authorities hold powers under both IPA 2016 and RIPA 2000. In addition, the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 allows certain public authorities to authorise criminal conduct by covert human intelligence sources. For more detail, see News Analysis: Covert Human Intelligence Sources (Criminal Conduct) Act 2021.
Surveillance powers available to authorities
The acquisition and disclosure of communications data (such as telephone billing information or subscriber details)
Directed surveillance (covert surveillance of individuals in public places)
Covert human intelligence sources (CHIS) (for example, the deployment of undercover officers)
Local authorities employ covert methods to support their statutory functions when enforcing the law in
Corporate Crime
PRACTICE NOTES
This Practice Note sets out guidance on the idea of ‘local connection’ as contained in section 199 of the Housing Act 1996 (HA 1996) for England and section 81 of the Housing (Wales) Act 2014 (H(W)A 2014) for Wales, as amended by the Homelessness Reduction Act 2017 (HRA 2017) with effect from 3 April 2018. The concept supports local housing authorities (LHAs) in handling housing applications by allowing referrals to other LHAs where an applicant lacks a local connection with the authority first approached. Its purpose is to avoid any single LHA being overwhelmed by applications. This Practice Note also outlines the relevant legislation and guidance in both England and Wales. Statutory guidance for England was published on 22 February 2018 to coincide with HRA 2017 coming into force on 3 April 2018.
Importance of local connection
A homeless person (the applicant) may seek housing
Local Government
PRACTICE NOTES
This Practice Note clarifies that a local housing authority (LHA) may allocate housing accommodation as it thinks suitable, reflecting the needs of the local community, set out within a published allocation plan. When an application is submitted, it must be examined and a determination reached by applying the published allocation criteria. An applicant is entitled to seek a review of refusals and to be told the outcome on review together with the reasons for it. It also identifies when a challenge is governed by statute, and when it ought to be brought by judicial review.
Applications for housing—decisions
An LHA is required to assess every application for the allocation of accommodation made in line with the procedural requirements of its allocation scheme. So long as it is evident that proper consideration has been given, the court is unlikely to disturb the LHA’s approach. In R (on the
Local Government
PRACTICE NOTES
The policy background
In 2012, the first edition of the National Planning Policy Framework (2012 NPPF) took effect in England. It obliged local planning authorities (LPAs), among other things, to plan to meet the full, objectively assessed requirement for both market and affordable homes within their boundaries. They were expected to use their evidence base so the Local Plan met the full, objectively assessed housing need across the housing market area, insofar as this aligned with the Framework’s policies, and to identify key sites critical to delivering the housing strategy over the plan period. This represented a significant change in policy—previously there was no obligation to assess needs objectively with a view to planning to meet them. The purpose of this shift was to boost significantly the supply of housing (para 47 of the 2012 NPPF). For further detail on the treatment of housing needs in the
Planning
PRACTICE NOTES
This archived Practice Note considers the requirement in the National Planning Policy Framework (NPPF) as first issued in 2012 (the 2012 NPPF) for local planning authorities (LPAs) to plan to meet the full, objectively assessed needs (OAN) for market and affordable housing in their areas. On 24 July 2018, the government published a revised NPPF (the 2018 NPPF), which replaced the 2012 NPPF from that date. It altered the policy approach to determining housing need and housing land supply.
Transitional provisions in Annex 1 of the 2018 NPPF provide that:
from 24 July 2018, the policies in the 2018 NPPF should be taken into account as material considerations in the determination of planning applications
development plans ‘may’ also need to be revised to reflect policy changes brought about by the 2018 NPPF; such revisions should be progressed as swiftly as
Planning
PRACTICE NOTES
The Human Rights Act 1998 (HRA 1998) obliges public bodies not to behave in a manner that conflicts with Convention rights. A claim can only be brought if the body in question is a public authority. It is therefore crucial to identify what qualifies a body as a public authority for the purposes of HRA 1998. In some matters the answer is straightforward, yet in many others the position is more nuanced. In those circumstances it is necessary to look to guidance issued by the courts on what makes an organisation a public authority. Only bodies meeting this threshold face potential claims under the Act. Judicial guidance remains essential in borderline cases.
The legislative background
Section 6 of HRA 1998 states: Acts of public authorities (1) It is unlawful for a public authority to act in a manner that is
Public Law
PRACTICE NOTES
Every public authority, when carrying out any of its functions, is subject to and must comply with the Public Sector Equality Duty (PSED). The PSED is contained in section 149 of the Equality Act 2010 (EqA 2010). In performing their functions, public authorities are required to have due regard to the need, in particular, to:
eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the EqA 2010
advance equality of opportunity between persons who share a relevant protected characteristic and those who do not
foster good relations between persons who share a relevant protected characteristic and those who do not
EqA 2010, s 149 replaced the earlier trio of standalone public sector duties on race, gender and disability equality (Race Relations Act 1976, s 71, Sex Discrimination Act 1975, s 76A and Disability
Public Law
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