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Court: Queen’s Bench Division (Administrative Court)

High Court determines preliminary issues on the application of article 6 ECHR and disclosure in a judicial review claim concerning the Government’s decision not to establish a public inquiry to investigate allegations of the UK intelligence services’ conduct in the aftermath of 9/11

Reprieve & Ors v The Prime Minister [2020] EWHC 1695 (Admin)

The claimants had applied for judicial review of the Prime Minister’s decision that it was not necessary to establish a public inquiry to investigate allegations of the UK intelligence services’ involvement in torture, mistreatment and rendition of detainees in the aftermath of events on 11 September 2001. At a preliminary hearing the Court heard argument on (1) whether article 6(1) of European Convention on Human Rights applies to the judicial review claim and (ii) if so, whether the claimants are entitled to disclosure to the extent set out in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269.

The court did not rule out the possibility that a party might in some circumstances invoke article 6(1) on behalf of a person unconnected to the proceedings, but the claimants could not do so in the present case. There was no reason why the scope of article 6 should extend to unknown persons who did not appear before the court and the judicial review claim was not determinative of the claimants’ civil rights. Accordingly, article 6 was not engaged. Even if article 6 were to apply, the Court was not willing to accept that AF (No 3) disclosure would be required in this case. The analysis of control orders which underpinned the conclusions in AF (No 3) did not apply. These proceedings do not involve the liberty of an individual in the sense that the proceedings are not concerned with granting release from detention. Nor does the refusal of a public inquiry raise anything akin to deprivation of liberty. The case will be decided on conventional judicial review principles, which will not examine the merits of the defendant’s decision but will consider whether the decision was lawful and the Court was not persauded that the Special Advocates will be unable to deal with, or that the court will be unable fairly to decide, the questions of law in issue.

The Court held that its decision does not mean that the Home Secretary’s reasons for withholding material will avoid independent scrutiny or that there is any lacuna in the rule of law. The process by which the court considers whether the closed material has been justifiably withheld has not yet commenced. The Special Advocates will be able to probe the Home Secretary’s reasons and through that process, the court will be able to ensure the ingredients of a fair trial while upholding the strong public interest in national security.

High Court finds that local authority acted unlawfully in failing to provide disabled brothers with night time care

R (Raja & Hussain) v London Borough of Redbridge [2020] EWHC 1456 (Admin)

The Claimants sought judicial review of the local authority’s failure to provide them with urgent night care and support under section 19(3) of the Care Act 2014 pending a full needs reassessment. The Claimants’ mother and primary carer was no longer able to support her sons at night due to her own deteriorating health conditions. The local authority repeatedly refused her requests for urgent assistance and denied it had the power to provide interim care under section 19(3).
The High Court found that the local authority did have the power to provide care and support under section 19(3) and it acted unlawfully in failing to do so. The sole justifiable response to the Claimants’ unmet needs was to fund 10 hours of care per night and the court made a mandatory order to that effect.
The Court observed that this case was a good example of when it is appropriate for a claim to be brought as a “rolling judicial review”, which allows procedural flexibility while maintaining public law rigour.

High Court finds that the National Crime Agency’s investigation was flawed in Unexplained Wealth Order case

National Crime Agency v Baker & Ors [2020] EWHC 882 (Admin)

This case was an application to discharge three unexplained wealth orders and related interim freezing orders. The National Crime Agency had adduced evidence to the effect that the disputed properties in the matter were acquired as a means of laundering the proceeds of unlawful conduct by an individual, ‘RA.’ The UWOs sought information about the purchases and transfers of the three properties, details about the registered owners and beneficial owners. The Respondents and Ultimate Beneficial Owners (‘UBOs’) provided extensive information but contended that the basis of the NCA’s application was factually incorrect, as the purchases were unconnected to RA, his supposed criminal activities and he was never the UBO of the properties. The NCA refused to withdraw the UWOs and the Respondents and UBOs brought judicial review proceedings.

In determining whether or not the NCA’s grounds for the making of the UWOs was lawful and justified, the Court found that in relation to Property 1 the NCA’s assumption that RA was the founder and source of its founds was unreliable. Concerning Property 3, there was no inference that it was the product of unlawful conduct while the NCA’s assumptions regarding Property 2 were found to be unreliable on the evidence. The court granted the applications to discharge the orders.

High Court declares bereavement support laws incompatible with human rights

Jackson & Ors v Secretary of State for Work and Pensions [2020] EWHC 183 (Admin)

This case concerned a challenge to bereavement support payments under Article 14 of the European Convention on Human Rights in conjunction with Article 8. Widowed parent’s allowance (“WPA”) is payable under the Social Security Contributions and Benefits Act 1992, section 39A in respect of deaths occurring on or before 5 April 2017, if (simplifying) the […]

Administrative Court dismisses challenge to funding decisions regarding special educational needs

Simone & ors v Chancellor of the Exchequer and Secretary of State for Education [2019] EWHC 2609 (Admin)

The Claimants sought to challenge both the decision-making surrounding the 2018 Budget, and the Defendants’ alleged “ongoing failure” to provide sufficient central funding for children and young people with special educational needs. They argued that the Defendants’ decisions had been taken in breach of the Public Sector Equality Duty and the “general” duty in s 7 of the Children and Young Persons Act 2008 to promote the wellbeing of children in England; had been irrational; and had violated Article 14 ECHR taken with Article 2 of Protocol 1 (the right to education).

Following a rolled-up hearing, the Administrative Court (Lewis J) granted permission but dismissed the claim, finding that the decisions had been reasonably open to the Defendants, had not been discriminatory, and had been taken in a manner consistent with the Defendants’ statutory obligations.