"a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration".
18. It is clear that words like ordinary residence and normal residence may take their precise meaning from the context of the legislation in which they appear but it seems to me that the prima facie meaning of normal residence is a place where at the relevant time the person in fact resides. That therefore is the question to be asked and it is not appropriate to consider whether in a general or abstract sense such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else does not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is for the relevant time the place where he normally resides. If a person, having no other accommodation, takes his few belongings and moves into a barn for a period to work on a farm that is where during that period he is normally resident, however much he might prefer some more permanent or better accommodation. In a sense it is "shelter" but it is also where he resides. Where he is given interim accommodation by a local housing authority even more clearly is that the place where for the time being he is normally resident. The fact that it is provided subject to statutory duty does not, contrary to the appellant authority's argument, prevent it from being such.
19. Although the point is not conclusive counsel for he respondent are entitled as they do to point to the fact that Parliament has specifically provided in section 199 that residence due to service in the armed forces or through detention under statutory powers is not "of choice" and the Secretary of State may specify other circumstances in which residence in a district is not to be treated as of a person's own choice, but nothing has been done to exclude residence under the homelessness provisions with which this appeal is concerned as not being of a person's own choice. If it had been intended to exclude such accommodation it would have been easy to have done so in the section or by the exercise of powers by the Secretary of State under section 119(5).
20. The appellant authority contends that interim accommodation cannot lead to the creation of a local connection attributable to normal residence even "if a person is in interim accommodation for an extensive period, eg years" though it recognises that local connection through other factors specified (eg special circumstances) can arise during the occupation of interim accommodation. The authority says that to allow such interim accommodation to count as normal residence defeats the purpose intended by the Act. Such accommodation was not intended to give an applicant the chance to build up a local connection; to take such interim accommodation into account benefits those whose cases demand long inquiry to the disadvantage of those whose cases can be dealt with quickly.
21. I agree with Henry LJ [2001] QB 97, 109, para 45 that although there is a re-distributive purpose to the Act, it has to be read with the other statutory purpose of providing for people to stay in a borough with which they have established a local connection and that there is no overriding reason or principle why interim accommodation should not count as normal residence for that purpose.
22. In R v Eastleigh Borough Council, Ex p Betts [1983] 2 AC 613, 628 Lord Brightman stressed that "the real exercise will be to decide whether the normal residence has been such as to establish a subsisting local connection". In my opinion the occupation of interim accommodation can be taken into account in deciding whether such a local connection exists.
23. A second question which has been raised is whether the correct date to decide whether a person has a local connection is the date of the making of his application or the date of the decision or, if there is a review, the date of the review. It seems to me plain that since the question for the local housing authority is whether the applicant "has a local connection" that must mean such a connection at the date of decision or review, whether in the meantime the applicant has acquired or lost (by moving away) his local connection.
24. A linked question which arises is as to the material which may be looked at on the review. The appellant authority contends that the reviewing officer may look at facts known to the original decision maker and those which existed before the time of the original decision but were not known to the original decision maker but he may not look at facts which have come into existence subsequently. The respondent on the other hand says that the reviewing officer can and should look at all the circumstances at the time of the review. In R v Southwark London Borough Council, Ex p Hughes (1998) 30 HLR 1082, in a case decided under the Housing Act 1985, before a statutory right of review was given, Turner J said, at p 1089:
"It may be thought therefore that there are compelling reasons why the circumstances of an individual, at the time the inquiry is carried out and the decision is made, must be the circumstances which the housing authority is required to investigate for the purposes of coming to their decision whether or not the applicant is homeless".
25. The present case is not concerned with whether the applicant tenants were homeless but whether there was a connection with Hammersmith or whether the applicants had a connection with Ealing and not with Hammersmith. It seems to me, however, plain that the approach should be as stated by Turner J and perhaps with more force since there is now a statutory right of review. I find nothing in the statutory language which requires the review to be confined to the date of the initial application or determination. The natural meaning of the language in section 184(2) in requiring the local housing authority to inquire whether the applicant "has" a local connection is that they should consider that at the date of the review decision. It is to be remembered that the process is an administrative one at this stage and there can be no justification for the final administrative decision of the reviewing officer to be limited to the circumstances existing at the date of the initial decision.
26. The decision of the reviewing officer is at large both as to the facts (ie as to whether the three conditions in section 198(2) of the Act are satisfied) and as to the exercise of the discretion to refer. He is not simply considering whether the initial decision was right on the material before it at the date it was made. He may have regard to information relevant to the period before the first decision but only obtained thereafter and to matters occurring after the initial decision.
27. As already shown the reviewing officer took into account in his letter whether there had been an essential compassionate, social or support need. The Court of Appeal held that this was a clear misdirection in law. Requiring that the applicant must show an essential compassionate, social or support need to live in the district was putting the test for local connection too high.
28. The appellant authority contends that this was not a separate test but an overall review of all the other matters which had been considered as to whether local connection by reference to special circumstances had been shown and that accordingly there was no misdirection. There is some force in this but it seems to me that the reviewing officer was using this additional test as part of his consideration as to whether there was a local connection by reason of special circumstances. On that basis as I understand it the appellant authority accepts that there was a misdirection as the Court of Appeal held. I agree with the Court of Appeal on this matter.
29. I would accordingly dismiss the appeal.
LORD STEYN
My Lords,
30. I have read the opinion of my noble and learned friend, Lord Slynn of Hadley. For the reasons he gives I would also dismiss the appeal.
LORD HOFFMANN
My Lords,
31. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Slynn of Hadley. For the reasons he gives I would also dismiss the appeal.
LORD HUTTON
My Lords,
32. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Slynn of Hadley. For the reasons he gives, and with which I agree, I would also dismiss this appeal.
LORD HOBHOUSE OF WOODBOROUGH
My Lords,
33. For the reasons given by my noble and learned friend, Lord Slynn of Hadley, I agree that this appeal should be dismissed.
To see how the law protects ethnic and religious expression at the work place, we can look forward to more cases guided by The employment Act 1989 that confirms turban-wearing Sikhs are exempt from the need to wear head protection in the workplace.
Religious clothing and symbols in employment as published by the EU, Legitimate aims are public order in accommodating difference but ensuring public safety As such, the aim of public order has been held to be;
....Engaged in some of the ECtHR cases regarding the wearing of religious clothing or symbols and this aim includes the argument that bans are necessary to preserve the secular nature of the state. In Sahin v Turkey, for example, a student of medicine at the University of Istanbul was refused access to exams because she was wearing the Islamic headscarf. The ECtHR found the interference with Ms Sahin’s Article 9 ECHR right to be justified, among other reasons, for the protection of public order because ‘this religious symbol [the Islamic headscarf] had taken on political significance in Turkey in recent years’ and because there were ‘extremist political movements in Turkey which seek to impose on society as a whole their religious symbols and conceptions of a society founded on religious precepts’.60 Public order was also accepted as a legitimate aim for limitations in Kervanci v France and Dogru v France, Aktas and Others v France (all concerning school pupils and what they could or could not wear in public education in France) and Kurtulmus v Turkey (concerning a university professor who wanted to wear an Islamic headscarf against the dress rules of a public university).61 Of these cases, only the latter concerned a ban on the wearing of religious symbols in employment. Legitimate aims: protection of health The protection of health could play an important role in relation to employment. For example, the wearing of hard hats on building sites is a safety measure which could interfere with the wearing of a Sikh turban, although there does not seen to be any problem with wearing hard hats together with, for example, 56 Nolan and K v Russia, App. No. 2512/04, 12 February 2009, para 73. 57 Nolan and K v Russia, para 73. 58 S.A.S. v France, App. No. 43835/11, 1 July 2014. 59 S.A.S. v France, para. 139. 60 Sahin v Turkey, Chamber, paras 108-109, confirmed by Grand Chamber, para. 115. 61 Kervanci v France and Dogru v France; Aktas and Others v France, App. Nos 43563/08; 14308/08, 18527/08, 29134/08, 25463/08, and 27561/08, 30 June 2009; Kurtulmus v Turkey, App. No. 65500/01, 24 January 2006. 34 Religious clothing and symbols in employment Jewish skullcaps or Islamic headscarves. In the UK, the law exempts Sikhs from the legal duty to wear head protection at work. The protection of health played a role in Chaplin v the United Kingdom, where a nurse wanted to wear a small crucifix on a chain with her nurse’s uniform. The ECtHR held that the employer was justified in requiring Ms Chaplin to take off her necklace and crucifix in order to protect the health and safety of both nurses and patients in a hospital. In this case, there was evidence that the employer had, for the same reasons, also informed two Sikh nurses that they could not wear a bangle or kirpan and had prohibited flowing hijabs.62 In the Netherlands, a Muslim nurse was dismissed after she refused to follow the hospital rules that nurses in the dialysis unit could not wear long sleeves. The rule was introduced to avoid infection and followed national guidelines and the District Court deciding the case held that this rule was necessary, proportionate and justified.63 It will be clear that workplace rules which prohibit the wearing of loose and or flowing clothing or of items of jewellery, even if these are worn for religious reasons, could, in certain work circumstances, also be justified for the protection of health and safety. Although the hospital, in Chaplin v the United Kingdom, prohibited the wearing of flowing hijabs for the protection of health and safety, it allowed Muslim doctors to wear a close-fitting ‘sports’ hijab for this reason.64 Another example from the UK is the case of Dhinsa v Serco, where a refusal to allow a Sikh man who was a trainee prison officer to wear his kirpan (a ritual dagger) was held to be justified, because the restriction was appropriate and necessary for the maintenance of prison security and the safety of staff, visitors and prisoners.65
The state, by allowing Rights claims, provides for its own acceptance through its own logical form. Public Order grounds can be used to deny certain religious and cultural claims as evidenced above in Kervanci v. France or Sahin v. Turkey. The state allows individuals to pursue their purposive rational action using existing laws instrumentally. This encourages and fosters legitimacy by allowing citizens to appeal for new laws which will legitimate actions considered legally irrational or deviant under the current law but they cannot succeed for very long since they contravene basic peace, civility and natural law such that they are contrary to the state's purpose in fostering peace and good government. The reason why God gave us natural law as embodied in the ten commandments is so that there would be sufficient peace, settlement and commodious living so that men could turn their minds to defying the natural laws of gravity and build an airplane. Without such laws, his mind is engaged in defending his simple breath in civil wars and conflict. The laws relating to homosexuality is an example, mercy killing, or the use of cannabis for medicinal purposes are other examples. The citizenry accepts the legitimacy of legal domination because it allows for the instrumental use of the system to fulfill the purposive actions of the subjective will formally and argumentatively redeemed within the legal system. Here one can understand what Habermas meant when he said that the "modern legal order can draw its legitimacy only from the idea of self-determination since the post-traditional morality, post 1960's, supplies a substitute for the natural law that is grounded in religion and metaphysics (Habermas, 1996). The substitute is essentially natural law as found in the workings of society itself and basic human needs that are based on various basic moral values that safeguard and buttress society and that are synonymous with the very religious values that reflect them. Albeit, it is an imperfect world but parents and their children would prefer protection from ice cream with lead in it. So, Here, one also sees the fulfillment of law's self-justifying characteristics. By virtue of its instrumentality, citizens are able to understand themselves as authors of the law to which they are subject as addressees (Habermas, 1996).
Law has changed more since 1970 as well since rape was recognized evidently as the sphere of female/feminine authority or the female mind in various sociological studies. The word "female" leaves a great deal of room for definitional import in this discussion but the point is that it is amorphous and other than the purposeful maternal or paternal being. Rape victims, male or female, are not buck or doe sacrifices. It is not a male brain that rapes but a female/feminine brain in any being; including a genetic male. The genuine maternal love, a daughter's love or wife's love is understood separately and works with the male who respects the female. The properly constituted male with a male brain honors, respects and protects the female and the female form. Potiphar raped Joseph by leaving her door open and he refused to participate. The properly constituted male is a protector and steward. He does not take advantage. Human beings have no other expectation. But, animals seem to respect a guttural reaction to an open door. The expectations are evident. The bible is in every child. It is within their program. Society is structured accordingly and various expectations or controls to remind us of our most basic humanity under the law. They are not only controlled by the legal bars of the iron cage, the system allows them to discuss, on some level, the extent of control as well as the need for the protection of their autonomy under the resources of the state. Here is Habermas' discursively achieved agreement between state and citizen. Laws or changes within them are the fulfilment of the discursively achieved agreements. It is the rule of the absolute Monarch in natural law and its legitimacy that the people should have the peace of the Magna Carta and this entails the work to hunt down those officials and citizens who resist the simple peace it offers in preserving the meaningfulness of human life. This is the purpose of all State law and action. The is the authority. This is the legitimacy. These individuals and officials challenge authority and peace and are efficiently neutralized by the Monarch and Queen. Every "rights" claim is answered through the instrumental use of law. People are claiming rights more today than they were pre-1960. Because of this law has changed more, becoming more instrumental post 1960. Some Examples of this in the U.K include the Race Relations Act 1976 as well as the Sex Discrimination Act 1975 and the Equal Pay Act 1970. Other examples include the Slaughter of Poultry Act, 1967 ( halal meat for Muslims) and the Motor-Cycle Crash Helmets (Religious Exemption) Act, 1976 ( for Sikhs). The ECHR becomes law in the U.K. in August 2 . — - - The role of the E.U. in English jurisprudence is evidenced further by the ECJ being an additional tier in the English Appellate Court system that will still include, by necessity, the House Of Lords in the format of the Supreme Court Of The United Kingdom. However, the UK courts do not have to follow every determination of the EU courts on the grounds that the position of the ECJ or ECHR are incompatible with UK legislation. If there is a determination or declaration of incompatibility, the EU law will be applied in a manner that is compatible with governing UK law until the UK legislation can be amended to satisfy EU treaty requirements to ensure there is no undue incompatibility affecting the lives of all EU citizens that will include all individuals born or domiciled in the U.K. as EU citizens.
R. v. Horcastle & Ors.. confirms this position in the EU. This includes the UK evidently. Without a doubt, there is no loss of legal tradition but a harmonizing in the respect for law as an expression of culture, localized traditions and expectations. EU membership does not prevent this respect of culture. But, we must be careful with efforts at Revisionist history that may sow false notions of both culture and history in the minds and souls of the current impressionable, gullible swivel group in the population who do not work very hard also known as the general tv viewing audience. Some popular situation dramas since 2007 are examples of poorly done, inaccurate, irresponsible revisionist history. The goal is to remain FRODO( Finding Reality On Dvd home tv box One); that is finding the reality of English culture on dock or channel one where your emotions and your mind should be docked. How could any foreign population; possibly Mulatto West Indians with native arawak dna , not pict dna, decide how to flout the legislation if there was no English Crown? They seem to wish to suggest that some people in the population regardless of the intentions of the actual white people who drafted the legislation must have the position to misapply the legislation with racial import so that they can say some citizens were not white enough to benefit from the non-racialised intention of the law. What purpose would they have in life if it was not for intercepting communications and working as Gremlins in the Brit Milah? The administration of law has become more stringent as a result in light of this open inward domestic terrorist threat that this population presents and this to prevent abuses and inefficiencies in administration. They will probably cause riots in England before their return to the West Indies since they hate part Pict native people and what they did to Arawaks with machine gun fire to exterminate large numbers of Arawaks in the West Indies. So, the Arawaks aimed to frustrate the colonial administration by stealing shipments and abusing the mail service. The English had to do everything twice and it became a redundancy. Now, the West Indians in the administration followed the same practice in England. They use various wiles to achieve their goal. The stringent application of law is to ensure legislative enforcement so that there is no racial import in governmental administration and the application of legal principles so that we may have civil society.
Commenting on this phenomenon, Lord Philips has stated the following in a recent judgement;
"...that although the requirement to take into account the Strasbourg jurisprudence would "normally result" in the domestic court applying principles that are clearly established by the ECtHR "There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances, it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course". See the judgement in the update.
Our analysis continues but before delving into any further insights from learned writers, let us reflect on a warning provided by some other thinkers. Menski has highlighted these warnings in his recent work:
But do lawyers care to read Habermas? Do they appreciate that Critical Theory is more than a cleverly worded, often shallow critique of legal failures to achieve standards of justice, increasingly measured today against certain presumed and asserted international criteria? Are we aware that Jacques Derrida famously called justice something that is always in the making, literally à venir? Earlier wise warning voices, for example Rudolph Stammler in the nineteenth century and Eugen Ehrlich (1913; 1936) at the start of the twentieth century, were drowned out by the remarkable shift away from natural law towards Weberian rationality, privileging various forms of state-centric legal positivism. This has been leading to rather self-serving claims of state law to be ›the law‹, which have only more recently been challenged by the new fashion of international human rights law. The misguided presumption that more recent concepts have simply replaced older forms of law appear to follow evolutionist thinking in the style of Sir Henry Maine. Positive law and now international human rights law as virtual cuckoos in the nest of comparative law, however, spell deep trouble for a more pluralist understanding of law as culture. It is not possible to assume that lessons from the Holocaust have been fully learnt if we continue to hear new horror stories of ethnic cleansing and elimination of all sorts of ›others‹ from various parts of the globe. Humanity as a whole seems to have learnt remarkably little. Or should we admit crucial disconnections between self-congratulatory sophistication of legal scholarship and continuing cruel realities of ›living law‹? Over time, legal scholarship may have become more sophisticated, but in the process the fashionable focus on only one type of law as the dominant law and the efforts to silence all the other types (for those, as we shall see, have not gone away) have clearly had pernicious consequences: Legal , From Plural Worlds of Law and The Search For Living Law; Dr. Werner Menski.
In Conclusion, there is no doubt ethnic minorities participate in all walks and realms of public life with the freedom to be football coaches, Law Directors of new or old companies or criminals like Horace Oswald if they so choose who only harass black people, burning their hair and their teeth at the local pub dropping acid in their glass or when you break in their homes when they believe, as citizens, that they can achieve goals of all kinds above and beyond the self limiting expectations of a man named Horace Oswald who says black people do not work in the city of London. But, they do. I am evidence as a banker and litigator. The system helps people and the role of counsel is to navigate them, all kinds of people, through the system in the benefit of the legal establishment that is engaged in protecting life and property belonging to all citizens. I could not be related to people who cannot be at peace with the fact that their relative helps people as a member of the Legal profession and as a practitioner in three countries, working as In-House Counsel following the CETA legislation. Enjoy your Onitsuka Tigers Horace. You are welcome. Throw my K Swiss shoes away and the Eddie Bauer Jacket. If my ex girlfriend was respectful to you as a police applicant, then I would not mind if you wear them. But, let her go now. She is hurting you and only wants someone to worship her; it seems. Stay if you are happy with what you lose everyday being around her and personally, I was never with her; never. She paid me to say I was engaged as she thought it would help her with her family that was threatening to give up on her based on her 3:3 grade average and the notice that she was being withdrawn that was sent to her father in April 1998. She was on special permission to graduate in 5 years because she did not really finish university in Otario as she was withdrawn at York for using my essays there also in 1994. She also asked my London lecturer to fail me if she had sex with him or anyone he asked to join in. She gave him the sex but I did not fail. There are two examiners for this reason to ensure students are protected from and malfeasance.
Thank you.
Warren A. Lyon, Citizen and Legal Analyst, In House Counsel at Angel Ronan Lex Scripta.
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