McCarthy & Ors v Basildon District Council

In an appeal engaging equality duties, the court may permit an equality body to intervene where its submissions could provide useful guidance to the court and the public authority. The intervention may be limited to written submissions where oral argument is unnecessary. The relevance of existing authority must be assessed in its institutional context, including the powers available to the decision-maker.

Basildon District Council appealed from a decision of Collins J in the Administrative Court in which the applicants succeeded against the Council. The Equality and Human Rights Commission had been permitted to intervene below, but the decision was based on grounds that did not substantially address the Commission’s equality responsibilities.

The Council applied to exclude the Commission from the appeal, or alternatively to restrict it to written submissions or make it liable for intervention costs. The central issue was whether intervention could usefully assist the court and the Council in addressing the equality implications of the enforcement decision.

1. Disposition. The Council’s application was refused. The Equality and Human Rights Commission was permitted to intervene in writing, but not orally.
2. Equality responsibilities. The Race Relations Act as amended and the Disabilities Discrimination Act of 1995 required public bodies to have due regard to their responsibilities to eliminate discrimination and promote equality. Those responsibilities were sufficiently relevant to justify useful intervention, even though the judgment below had been decided on grounds outside the Commission’s principal remit.
3. Utility of intervention. The court considered that written submissions could guide both the court and the local authority on the approach an authority in the Council’s position should adopt when considering enforcement. The fact that the Commission might advance grounds not raised by the parties, or that the submissions might be prospective because a fresh decision could be required, did not make intervention unprofitable.
4. Scope of existing authority. The Council relied on R (Baker & Ors) v Secretary of State for Communities and Local Government & Bromley LBC [2008] EWCA Civ 141. That decision concerned planning refusals relating to the retention of caravans by gypsies in the green belt. Its guidance did not remove the potential value of intervention because a planning inspector’s powers to ameliorate consequences were more limited than those of a local authority.
5. Form of intervention. The Commission’s intervention was confined to a written document identifying the issues the court should consider and the approach it submitted the Council should adopt.

• Court of Appeal (Civil Division): On 25 November 2008, Moses LJ refused the Council’s application to exclude the Equality and Human Rights Commission, permitted written intervention and refused oral intervention.
• Administrative Court, Queen’s Bench Division: Collins J found in favour of the applicants against the Council. The citation of that decision was not stated in the judgment.