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Legal Developments in the The Legal 500 United Kingdom 2012
Getting the breaks
Shook, Hardy & Bacon currently authors the Insurance section of The In-House Lawyer magazine. For more information and articles from this author click here.
In the context of any company restructuring or reorganisation, the presence of a break clause in one of the company’s leases is a valuable thing indeed. This will enable the tenant to move out of unwanted or over rented space. At the very least, if the premises are over rented, the presence of a break clause will give the tenant a negotiating platform to seek a variation of the existing lease.
Revisiting Bartoline
Macfarlanes LLP currently authors the Litigation & Dispute Resolution section of The In-House Lawyer magazine. For more information and articles from this author click here.
The decision in Bartoline v Royal Sun Alliance [2006] has some commentators arguing that the door has effectively been shut on recovering environmental liabilities under public liability (PL) policies. This article examines whether this is true; it looks at the legal principles in Bartoline, its impact on the environmental insurance market and the likely future of the PL insurance market in the UK.
Targeted financial sanctions: what if the target is wrong?
Kingsley Napley LLP currently authors the Public and Administrative Law section of The In-House Lawyer magazine. For more information and articles from this author click here.
Sanctions have been an important mechanism in the efforts - by the UN, EU and individual states - to promote international peace and security. Since the early 1990s, and following the experience of implementation of comprehensive sanctions against Iraq, increasing use has been made of so-called targeted sanctions - measures taken against named individuals or entities. The hope has been that targeted sanctions will be both more effective in achieving the desired outcomes, while at the same time reducing the adverse impact on the general civilian population in the target state.
Possession Proceedings 28 August 2012
The lower courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings.
Localism Act 2011 Wales
TERRITORIAL EXTENT AND APPLICATION
1. Some of the provisions in the Localism Act 2011 (“the Act”) apply in England only, some provisions also apply in Wales, and some apply in Wales only. Application to England and Wales is set out in Annex A to the Act. 2.
EXECUTIVE POWER
In R (Buck) v Doncaster MBC [2012] EWHC 2293(Admin) Hickinbottom J considered the respective powers of an Elected Mayor and his Executive Cabinet on the one hand and the Full Council on the other hand and the division and demarcation between them.
Social Services
This paper covers 5 topics:
(1) the Social Services (Wales) Bill;
(2) the Mental Health (Wales) Measure;
(3) the role of resources in decisions to provide services and challenges to decisions about direct payments;
(4) challenges to decisions setting care home fees, and(5) the relationship between community care and the best interests
jurisdiction.
Public Procurement 17 August 2012
R (A) v Chief Constable of B Constabulary [2012] EWHC 2141 (Admin)
This case addresses the circumstances in which the Courts will impose a public law duty of procedural fairness etc. when public bodies are carrying out procurement activities. This is particularly significant in cases where the Public Contract Regulations 2006 do not apply e.g. where there is no significant cross-border interest in the relevant contract, and the only available remedy is judicial review. The judgment supports the view that the fact that a public body is exercising statutory powers in conducting a procurement/entering into a contract should be treated as sufficient to activate the Court’s supervisory judicial review jurisdiction.
Procedural Fairness
R (Dudley MBC) v SoS for CLG [2012] EWHC 1729 (Admin) concerned a decision by the SoS to change the way in which he would make payments pursuant to s88B of LGFA 1988/s31 of LGA 2003 under a PFI scheme.
HOUSING - July 2012
The lower courts continue to clarify the position following the decisions of the Supreme Court in Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] UKSC 8; [2011] 2 AC 18 on the application of Article 8 ECHR to defend possession proceedings.
COLLECTIVE AGREEMENTS
In Anderson v London Fire & Emergency Planning Authority, UKEAT/0505/ 11/SM, the EAT considered whether a term in a Collective Agreement with respect to the third year of a three year pay deal was apt to be incorporated in the contracts of employment of the Authority’s employees, and, if so, how that term should be interpreted.
Public Procurement
Turning Point Limited v Norfolk County Council [2012] EWHC 2121 (TCC)
Public Procurement
Newcastle Hospital NHS Foundation Trust v (1) Newcastle PCT (2) North Tyneside PCT & Ors [2012] EWHC 2093 (QB)
'High-risk' student visa applicants to be interviewed
Immigration Minister Damian Green has announced that an interview system for students will be introduced this summer. The interviews will target those students deemed to be ‘high risk applicants’ and involve asking questions about the individuals' immigration and education history, study and post-study plans and financial circumstances. The UKBA expects to interview as many as 14,000 students over the next 12 months and visas will be refused if officials are not satisfied that someone is a genuine student.
WHAT IS A HIGHWAY?
In Kotegaonker v SoS for Environment etc and Bury MBC [2012] EWHC 1976 (Admin) Hickinbottom J held that a footpath linking two privately-owned sites, one containing a health centre and the other containing shops, could not be a public highway, either at common law or under the Highways Act 1980 s.31, because members of the public had no legal right of entry at either end of the path.
Public Procurement
Re. David Connolly's Application for Judicial Review [2012] NICA 18 (12 June 2012):
Homelessness - 20 June 2012
In an extempore judgment R (on the application of Cranfield-Adams) v Richmond upon Thames London Borough Council (QBD, judgment of 19 June 2012) which has not yet been properly reported, Jeremy Stuart-Smith QC, sitting as a Deputy, held that it was lawful for a local housing authority and in accordance with its duty under s.193 of the Housing Act 1996 to defer a homeless man's application for housing for two years where he had previously refused a suitable offer of accommodation.
Sustainable Communities
The Sustainable Communities Regulations 2012, SI 2012/1523, come into force on 26 July 2012, in England only.
Yes, Cost can be taken into Account
In Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34 the Council, in its capacity as Local Planning Authority, granted planning permission for four blocks of student accommodation in proximity to a site used for storage of liquefied petroleum gas.
LOCAL GOVERNMENT LAW UPDATE
PUBLIC SECTOR EQUALITY DUTY (“PSED”)
In R (Siwak) v Newham LBC (2012) EWHC 1520 (Admin) Cranston J held that the local authority had not failed to comply with the PSED under s149 of Equality Act 2010. Policies under formulation were the subject of equality analysis. It was not for the Court to micromanage the process. Consultation before proposals were formulated would have been premature.
R (KM) v Cambridgeshire CC [2012] UKSC 23:
Supreme Court finds direct payment level rational and declines to reconsider Barry
Barry survives In KM, the Supreme Court was expected to reconsider the House of Lords’ decision in R v Gloucestershire CC, ex p Barry [1997] AC 584.
COMPULSORY ACQUISITION OF LAND
In R (Barnsley MBC) v SoS for CLG [2012] EWHC 1366 (Admin), Judgment of Foskett J on 24 May 2012, the Council made a CPO in respect of land in its area registered as a Village Green. The Council relied upon s121 of LGA 1972 and s2 of LGA 2000. The SoS took the view, however, that these provisions did not provide an enabling power. He regarded the CPO as invalid, and declined to confirm it.
Community care, section 21 and human rights:
R (De Almeida) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin)
The High Court has decided that a local authority applied too high a threshold when deciding that an applicant for accommodation under section 21 of the National Assistance Act 1948 was not “in need of care and attention”.
COMMUNITY RIGHT TO CHALLENGE
On 17 May 2012, in exercise of powers conferred by sections 81 and 235 of the Localism Act 2011, the Secretary of State made the Community Right to Challenge (Expressions of Interest and Excluded Services) (England) Regulations 2012, SI 2012/1313.
HOUSING
In Nzinga Maswaku v Westminster City Council [2012] EWCA Civ 669 the Court of Appeal clarified that in offering a homeless person with alternative temporary accommodation the local authority is obliged to point that if the offer is refused it has discharged its Part VII duties under the Housing Act 1996.
COUNCIL TAX
In Harrow LBC v Ayiku [2012] EWHC 1200 (Admin) Sales J held that the word “or” in the Council Tax (Exempt Dwellings) Order 1992, art 3 Class N, had a disjunctive meaning, therefore it was sufficient for the non-British spouse of a foreign student to satisfy one or other of the two conditions, namely being prevented from taking paid employment or being prevented from claiming benefits, in order to qualify as a “relevant person” who was exempted from liability to pay council tax.
QUEEN’S SPEECH
Bills already introduced pursuant to the Queen’s Speech on 9 May 2012 include Local Government Finance Bill and Electoral Registration and Administration Bill, both accompanied by Explanatory Notes, which in each case address ECHR compatibility.
Standards
In R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172 (Admin) Mr Calver was a member of Manorbier Community Council who successfully challenged the decision of the Panel to dismiss his appeal against a decision by Prembrokeshire County Council Standards Committee censuring him for a number of comments or blogs posted by him on a website he owned and controlled.
A justified retrospective
Clive Sheldon - QC debates the pros & cons of retrospective tax legislation
Public Sector Equality Duty (“PSED”)
In R (Greenwich Community Law Centre) v Greenwich LBC [2012] EWCA Civ 496 the Court of Appeal held that the Council had had “due regard to the PSED when making changes to its funding of community legal advice services”. At para 30 Elias LJ said:
Public Sector Equality Duty
Surrey County Council conducted a review of its Library Service. This culminated in a Report to the Council’s Cabinet. The Recommendations in the Report included that there should be consultation about a community-partnership approach at selected Libraries.
Judicial Review
The Judgment of Lindblom J in The Manydown Co Ltd v Basingstoke and Deane BC [2012] EWHC 977 (Admin) repays attention. The Claimant sought to challenge by judicial review 2 decisions of the Council: (1) the Council’s refusal to reconsider its position on the development of a site that it owns (and is the subject matter of a Joint Development Partnership Agreement with the Claimant); and (2) a decision of the Council’s Cabinet approving a selection of sites for development which did not include this site.
The Health and Social Care Act 2012: impact on adult social services
After its torrid passage through Parliament, the Health and Social Care Bill received Royal Assent on 27 March 2012. The Act deals principally with healthcare reform, but it also contains some amendments to the legislative framework for social care. It will come into force on a day yet to be appointed by the Secretary of State.
A justified retrospective
Clive Sheldon QC debates the pros & cons of retrospective tax legislation
The Health and Social Care Act 2012: impact on adult social services
After its torrid passage through Parliament, the Health and Social Care Bill received Royal Assent on 27 March 2012. The Act deals principally with healthcare reform, but it also contains some amendments to the legislative framework for social care. It will come into force on a day yet to be appointed by the Secretary of State.
Highway
In AC v Devon County Council [2012] EWHC 796 (QB) Slade J held that a local authority was liable, under s41 Highways Act 1980, for personal injury sustained in a traffic accident, because the condition of a stretch of highway was dangerous to traffic, that was attributable to the authority’s failure to repair or maintain, and the authority had not established a defence under s58.
Local Elections
The Local Government (Wales) Measure 2011 imposes a duty on a local authority to conduct a survey after each ordinary election, asking prescribed questions of councillors and unsuccessful candidates.
Public Procurement
In Case C-599/10, SAG v Upro, the CJEU in a Judgment on 29 March 2012, reiterated (para 40) that the procurement regime “... does not preclude ... the correction or amplification of details of a tender where appropriate, on an exceptional basis, particularly when it is clear that they require mere clarification, or to correct obvious material errors, provided that such amendment does not in reality lead to the submission of a new tender”.
Council Tax
Note the Local Authorities (Alteration of Requisite Calculations) (Wales) Regulations 2012, SI 2012/521 (W.82).
OBSTRUCTION OF BRIDLEWAY
Kind v Northumberland County Council [2012] EWHC 603 (Admin) concerns a cattle grid situated on a farm track over which the public has a right of way on foot and on horseback.
Homelessness
Haringey LBC operated an automatic bidding system whereby tenants it had housed in temporary accommodation under s.193 of the Housing Act 1996 were allocated points by relation to specified thresholds. The Council then notified the tenants of available accommodation, and then automatically offered the new accommodation to the tenant with the highest number of points in the relevant category.
THE PUBLIC SECTOR EQUALITY DUTY
Since the Coalition Government came into power, “doing more with less” has become a typical catchphrase. Cutting public services, charging for services, or finding a more economically attractive way of delivering public services has been a requirement for most, if not all, public authorities.
LIBRARY CLOSURES AND THE PUBLIC SECTOR EQUALITY DUTY: LIBRARIES
I consider 6 topics in this paper (1) the legislative framework, (2) the implied duty to assess need, (3) community groups ,(4) Equality Impact Assessments (“EIAs”) and libraries, (5) institutional arrangements, (6) the Localism Act 2011.
WHETHER LANE A PUBLIC VEHICULAR HIGHWAY
In Fortune v Wiltshire County Council [2012] EWCA Civ 334 the Court of Appeal upheld findings that a lane was a vehicular highway dedicated at common law and that the public right to use mechanically propelled vehicles on the lane had not been extinguished by Section 67 of the Natural Environment and Rural Communities Act 2006 (“NERCA”).
THE STAFFING, SEN AND ADMISSIONS ISSUES FOR LOCAL AUTHORITIES OF ACADEMY CREATION
This talk considers three somewhat disparate, but crucial, areas of school life and the implications of Academy status in those areas. The areas are staffing, Special Educational Needs (SEN) and admissions.
PUBLIC SECTOR EQUALITY DUTY: THE LATEST GUIDANCE FROM THE EQUALITIES AND HUMAN RIGHTS COMMISSION
Section 149 of the Equality Act 2010 (“the 2010 Act”), which came into force on 5th April 2011, provides that:
ACADEMIES – LAND TRANSFERS
Questions relating to the transfer of land to new academies present a number of problems in practice. The basic principle being followed by the Secretary of State (“SoS”) is that the new academy ought to have by way of land the same rights and interests as the old school, although the powers under the Academies Act 2010 (“the Act”) give the SoS much wider powers than that.
The Process for Opening a Free School
There is, strictly speaking, no such thing as a Free School. Nowhere is the term to be found in the copious legislation covering education; it is a political construct rather than a legal one. A Free School is simply a form of academy, outside of local authority control but funded by the State.
Non-Domestic Rating/Wales
Note the Non-Domestic Rating (Small Business Relief) (Wales) (Amendment) Order 2012, the Non-Domestic Rating (Deferred Payments) (Wales) Regulations 2012 and the Non- Domestic Rating (Demand Notices) (Wales) (Amendment) Regulations 2012, respectively SIs 2012/465 (W.76), 466 (W.77) and 467 (W.78).
Dedication of Highway
The dedication to the public by a local highway authority of highways was inferred by the Privy Council in J & O Operations Ltd v Kingston & St Andrew Corporation [2012] UKPC 7, relying (para 13) on Espley v Wilkes (1872) LR 7 Ex 298 and (para 14) Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620.
LOCAL GOVERNMENT UPDATE
Note the Localism Act 2011 (Commencement No 4 and Transitional, Transitory and Saving Provisions) Order 2012, SI 2012/628 (C.14); and, pursuant to the Localism Act (1) the Council Tax (Administration and Enforcement) (Amendment) (England) Regulations 2012, SI 2012/672, (2) the Standards Board for England (Abolition) Order, SI 2012/668, (3) the Localism Act 2011 (Regulation of Social Housing) (Consequential Provisions) Order 2012, SI 2012/641, and (4) the Localism Act 2011 (Housing and Regeneration Functions in Greater London) (Consequential, Transitory, Transitional and Saving Provisions) Order 2012, SI 2012/666.
LOCAL GOVERNMENT UPDATE
Section 71 of the Localism Act 2011 (“LA 2011”) amends the Local Government Finance Act 1988 (“LGFA 1998”) to provide a power for the Secretary of State (“the SoS”) to prescribe by regulations conditions for the cancellation of certain backdated non-domestic rates, but only where a property is shown in a local non-domestic rating list compiled on 1 April 2005 as the result of an alteration of the list made after the list was compiled.
LOCAL GOVERNMENT LAW UPDATE
In Newhaven Port and Properties Ltd v East Sussex County Council [2012] EWHC 647 (Admin) the claimant company and port authority applied for judicial review of the Council’s decision to register a tidal beach as a “town or village green” under s15 of the Commons Act 2006.
Governance Arrangements
James Goudie QC & Peter Oldham QC
1. Chapter 5 of Part 1 of the 2011 Act relates to Governance. Chapter 5 contains four short Sections: Sections 21-24 inclusive; and incorporates two lengthy Schedules: Schedules 2 and 3.
Localism Act 2011: referendums
Local referendums were one of the flag ship provisions within the Localism Bill, and provided a unique example of the localism proposed in the legislation.
Localism Act 2011: the New Standards Regime
Tim Kerr QC
The new regime for upholding standards of conduct by local authority members is in place but not yet in full force. It represents a compromise between localism and centralism.
The General Power of Competence, Charging and Commercial Purposes
This paper is about the general power of competence (“the new power”). The new power is conferred by section 1 of the Localism Act 2011 (“the Act”).
Localism Act 2011 – section 25, predetermination
Jonathan Swift QC
As enacted, section 25 provides as follows.
25 Prior indications of view of a matter not to amount to predetermination etc
The Localism Act 2011 - Planning
Tom Cross
1. The Localism Act 2011 (“the Act”) makes changes in a number of areas, the most significant of which, covered in this paper, are these:
Senior Pay and Localism Act 2011
Christopher Knight
SENIOR PAY AND ACCOUNTABILITY
1. Chapter 8 of Part 1 of the Localism Act 2011 (sections 38-43) establishes a new regime of transparency, accountability and restraint in relation to local authority pay.1 As part of “The Coalition, Our programme for government” (May 2010), the Coalition had stated:
Housing and Localism Act 2011
Christopher Knight
Housing is a key issue in the Act. Part 7 of the Act comprises six chapters covering the following topics:
No substitute for experience
If there is one part of the Localism Act 2011 about which local government lawyers have considerable concerns, it is the new standards regime.
CONSULTATION AND LEGITIMATE EXPECTATIONS
Clive Sheldon QC
Consultation: What needs to be done?
1. Whether or not there is in law an obligation to consult, where consultation is embarked upon it must be carried out fairly. What is ‘fair’ will obviously depend on the circumstances of the case and the nature of the proposals under consideration: see R (Edwards) v Environment Agency [2006] EWCA Civ 877 per Auld LJ at [90].
Freedom of Information Update
Timothy Pitt-Payne QC
1. The Freedom of Information Act 2000 (FOIA) is likely to be one of the enduring legacies of the 1997-2010 Labour government. It was introduced during the 1997- 2001 Parliament in the context of wide-ranging constitutional reforms, including the Human Rights Act 1998 and Scottish and Welsh devolution.
Localism Bill: Commercial Purpose, Governance and Conduct
Daniel Stilitz QC
1. This paper covers three aspects of the Localism Bill (“the Bill”):
1.1.Commercial purpose (clauses 1(4) and 4);
1.2.Governance (clauses 11 to 13 and Schedules 2 and 3); and
1.3.Conduct (clauses 15 to 21).
Procurement law update
Jason Coppel
This paper reviews recent developments in procurement law under the following headings:
(1) Time limits for procurement challenges.
(2) Providing information to unsuccessful tenderers.
(3) Remedial discretion.
(4) Obligations in relation to Part B Services.
(5) Selection and disclosure of criteria.
(6) Allowing correction of mistakes by tenderers.
(7) The 2011 Amendment Regulations.
TOP CASE ROUND UP 2011
James Goudie QC
TWO FROM STRASBOURG 1. The Judgments of the European Court of Human Rights (“the ECtHR”) in 2011 include the education cases of Ali v Lord Grey School, Judgment on 11 January, and Lautsi v Italy, Judgment on 18 March. Other education cases of interest in the year considered below include G v Governors of X School in our Supreme Court, the Shoesmith case in the Court of Appeal, and the Building Schools for the Future (“BSF”) litigation in the High Court. See further the 11 KBW Education Law Blog.
LOCALISM BILL: SENIOR PAY AND REFERENDA
Amy Rogers
1. This paper addresses two aspects of the Localism Bill in two areas:
(i) pay restraint and transparency; and
(ii) local referendums.
THE LOCALISM BILL AND THE GENERAL POWER OF COMPETENCE
Tim Kerr QC
- Localism Bill, as amended in committee (latest version 22 July 2011), clauses 1-8
- Explanatory Notes to the Bill as introduced on 13 December 2010, paragraphs 1-17 and
paragraphs 47-58
- Transcript of Committee Proceedings, Tuesday 1 February 2011 (morning session)
- Decentralisation and the Localism Bill: an essential guide (December 2010, with foreword by Nick
Clegg and Greg Clark MP, Minister of State for Decentralisation); updated version, June 2011.
- Localism Bill: general power of competence for local authorities: Impact assessment, January 2011
- A plain English guide to the Localism Bill, DCLG, January 2011.
Procurement law update
Ben Hooper
This paper reviews recent developments in procurement law under the following three
headings:
(i) Recent case law on the new remedies regime;
(ii) The Teckal exception and the Supreme Court’s judgment in Brent; and
(iii) Procurement and the Localism Bill.
Independent Schools Council v Charities Commission
Rachel Kamm
The following extracts are taken from the 260 paragraph decision of the Upper Tribunal in: (1) a judicial review claim: Independent Schools Council v The Charity Commission) TCCJR/ 03/2010; and (2) a referral by the Attorney General FTC/99/2010:
Independent Schools, the contract for Education and some litigation issues
1. There are numerous cases about the duties of care in tort which schools, whether independent or maintained, owe to their pupils. Most of them – though not all, as we will see – concern physical injury in the playground, during sports or on school trips.
2. But there are fewer about the contractual relationship between an independent school and those paying the fees for the education and (in some cases) others.
3. This paper explores some features of that contract and litigation issues that can result.
TACKLING AND PROVIDING FOR TUPE IN THE CONTEXT OF PROCURMENT
Peter Oldham QC
Human rights extend to Iraq, says Strasbourg
In judgments of considerable potential significance, the Grand Chamber of the European Court of Human Rights has unanimously held that in the exceptional circumstances deriving from the UK’s assumption of authority for the maintenance of security in South East Iraq from 1 May 2003 to 28 June 2004, the UK had jurisdiction under Article 1 ECHR in respect of civilians killed during security operations by UK forces in Basrah: Al-Skeini v United Kingdom (App. No. 55721/07). The Court held that there had been a failure by the UK to comply with its Article 2 ECHR obligations to conduct independent and effective investigations into the deaths of the relatives of the applicants before the Court.
Challenges
James Goudie QC
Contracting authorities are increasingly being taken to Court to face allegations of breach of the procurement rules. The new remedies regime has proved to be a major impetus. Not only are damages claims, for the loss of the chance of an award, being pursued. There are many issues over interim relief, and time limits.
Academies
Joanne Clement1
The coalition government has made it very clear that Academies – publicly funded schools, independent of local authority control – are to play an increasing role in the education of the nation‘s school-children. Or at least, the nation‘s English school-children, as academies have not been adopted by the Welsh Government.
Procurement 2009
James Goudie QC
In current economic circumstances there may be an increased risk of challenge to procurement decisions. In particular there may be more damages claims. Nonetheless, parties to existing works, services and supplies contracts may wish to vary the terms of their contracts; parties to current procurements may wish to abandon the exercise or vary the award criteria; and parties may wish to try to go ahead with a proposal but try to avoid the procurement regime altogether.
EDUCATION LAW UPDATE
James Cornwell
This paper looks at recent case law (i.e. in the last year or two) and legislative developments, both those already with us and those that are promised or threatened (depending on one’s perspective), in the following broad areas: (1) admissions; (2) exclusions; (3) education otherwise than in school; and (4) school attendance. The focus is primarily on the position in England, although with some reference to the position in Wales, where it differs.
School Travel Arrangements in England and Wales
Joanne Clement
This paper looks at the different legal regimes for school travel arrangements in England and Wales. I then go on to look at a number of “problem areas” for local authorities, including
(a) the duty to make travel arrangements for the children of disabled parents who cannot escort them to school;
(b) travel arrangements to faith/language schools;
NHS IN THE HIRING LINE Agency Workers Regulations 2010/93
Jane McCafferty
The Agency Workers Regulations 2010 (“AWR”) come into force on 1 October 2011. The previous government estimated that the cost of the implementation of the AWR to the 1.3 million agency workers in the UK would be £1.9 billion. The NHS is now expected to reduce management and agency costs by 45% and make £500 million in savings by 2013/14. The costs burden will not be limited to the substantive rights under the AWR but will include the administrative burden imposed on both hirer and supplier of temporary staff. What will the AWR mean for NHS employers as (a) hirers (b) suppliers of temporary workers internally (c) suppliers of temporary workers to other NHS bodies?
Chambers of James Goudie QC (11KBW)
11KBW Employment Law Conference took place this year in London and Leeds.
5th May 2011 – London
18th May 2011 – Leeds
Localism Bill: Senior Pay and Accountability
1. Chapter 6 of the Localism Bill (clauses 21-26) requires local authorities to publish annual “senior pay policy statements” – “having regard” to guidance to be published by the Secretary of State. Authorities will then be constrained by their policy statement when making determinations on senior officer pay (although the statement may be amended at any time by resolution).
Local Referendums
1. Consistently with its emphasis on voluntarism and community empowerment (which indeed is the title of Part 4 of the Bill), the Government has included entirely new provisions for “local referendums” (“LR”) in the Bill, at cls 39-55. Cl 56 and Schedule 5 create provisions for council tax referedums, which are dealt with separately at the end of this paper.
PREDETERMINATION
1. progress of the Localism Bill 1. The Localism Bill (“the Bill”) was presented to Parliament on 13 December 2010. On 17 January 2011 the House of Commons debated the main principles of the Bill. The Commons decided that the Bill should be given its Second Reading and sent it to a Public Bill Committee for scrutiny. The Localism Bill Committee is now accepting written evidence. It heard oral evidence on Tuesday 25 January on the first sitting and second sitting and on Thursday 27 January on the third sitting and fourth sitting. The Bill is due to have its Committee Stage in the House of Commons on 8 February 2011.
The Localism Bill
Ever since the introduction of a planning system in this country, the extent to which local people should be able to influence planning decisions - whether at the plan-making stage or in the determination of individual applications for planning permission - has been a matter for constant debate. The stated aim and apparent effect of the Localism Bill is to give local people greater influence in this than ever before. It nevertheless remains to be seen whether the Localism Act will achieve that stated aim, at least in a way that is cost-effective.
Social Housing
Social housing is a key issue in the Bill. Perhaps surprisingly, the consultation paper including the proposed changes (‘Local decisions: a fairer future for social housing’) was only published on 22 November 2010, with a closing date for responses long after the Bill itself had been introduced.
LOCALISM BILL GOVERNANCE AND CONDUCT
1. The provisions of the Localism Bill (“the Bill”) include: (1) Changes to the governance arrangements of local authorities and the way in which they may take decisions, enabling local authorities to operate a committee system rather than executive arrangements; and (2) Changes to the ethical framework for local authorities created by the Local Government Act 2000 (“the 2000 Act”), and amended by the Local Government and Public Involvement in Health Act 2007, to make it essentially permissive
THE LOCALISM BILL AND THE GENERAL POWER OF COMPETENCE
The Bill introduces a general power of competence1 for local authorities in England. It does not repeal outright the wellbeing powers in s.2 LGA 2000, but relegates them to applicability in Wales only (cl. 1(7) and Sch. 1). For Wales, it repeals s.2(3) and (3A) (obligation to have regard to community strategy when exercising wellbeing powers), though the obligation to have a community strategy remains.
Localism Bill: Commercial Purposes
A: Brave new world: The general power of competence at Clause 1 of the Bill, if not an all-out revolution of public law orthodoxy, certainly counts as a minor uprising. Clause 1 is local government’s Barak Obama “yes we can” moment. At a single stroke the default position on vires will be switched from no to yes.
The Public Sector Equality Duties and the Cuts
The public sector equality duties (“the duty”), is not, at first sight, most the most exciting legal topic. But it has been getting some attention in the media since the summer. Plans for reductions in spending by HM Treasury contained in the emergency budget, and in the Comprehensive Spending Review (“CSR”), have come under particular scrutiny.
Cuts and community care/grant funding
In determining how to live within the constraints of the much reduced public spending envelope, local authorities will be considering which services may need to be cut. Cuts in community care services and grant funding will be high on the agenda.
HOW PROCUREMENT LAW IMPACTS:
HOW PROCUREMENT LAW IMPACTS ON THE ABILITY TO SAVE MONEY BY SHARING SERVICES, VARYING CONTRACTS AND CANCELLING PROCUREMENTS
BUDGETARY ISSUES AND THE DIVIDING LINE BETWEEN EXECUTIVE AND NONEXECUTIVE FUNCTIONS
This is a brief paper designed to highlight an issue which for many authorities, with the same stable political majority both in the Executive and in full Council, may be of little practical relevance.
THE ABILITY TO RAISE MONEY THROUGH CHARGING AND TRADING – SOME BRIEF POINTS
This paper deals with the law as it currently stands. The forthcoming Decentralisation and Localism Bill, whose publication was thought to have been imminent, but has now been delayed, promises to introduce a power of general competence.
Strikers – Protection against Dismissal
This handout looks at the legal consequences in three different sets of circumstances: (1) Dismissals before the strike or other industrial action (“action”) has begun; (2) Dismissals during unofficial action; and (3) Dismissals during official action.
Strike Action
In the last twelve months there have been a number of important decisions in relation to Part V of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
Public Procurement
Case law update (2) – Procedures and Remedies
Case-law Update
Application of the Public Contracts Regulations 2006
The Human Rights Act: 10 Years On
The Human Rights Act 1998 (“the HRA”) will have been in force for 10 years on 2nd October 2010. With the stated objective of “bringing rights home”, it incorporated for the first time the European Convention on Human Rights (“the ECHR”) into domestic law, and set up a machinery for the direct enforcement of Convention rights against public authorities.
Bias and the Code of Conduct
A decision of a local authority may be ruled unlawful if the decision-maker was motivated by actual bias or where there is an appearance of bias.
PUBLIC PROCUREMENT
Perhaps the most important development in public procurement law in the last year has been the transposition into domestic law, by amendments (SI 2009/2992) to the Public Contracts Regulations 2006 (“the Regulations”), of the new Remedies Directive (2007/66/EC). The new provisions:
INFORMATION SHARING & EMPLOYMENT VETTING
The fact that public authorities collect, analyse and disseminate vast quantities of personal data has given rise to substantial controversies in recent years. Questions which are now regularly being posed by members of the public, campaigners and politicians include whether public authorities:
THE RACE, SEX AND DISABILITY EQUALITY DUTIES
Public authorities have been under a general duty to promote race equality since 2 April 20011. It is only in recent years, and especially since the introduction of the disability equality duty on 4 December 2006 and the sex equality duty on 2 April 2007, that these duties have received any significant attention in the courts. In the last couple of years the number of cases dealing with the equalities duties has increased, and a ground of challenge on the basis of a failure to comply with equalities duties is a regular feature of judicial review claims against public authority funding decisions and restructuring of services.
BIAS
A decision of a court, tribunal or a public body, such as a local authority, may be invalidated if the decision-maker was motivated by actual bias or where there is an appearance of bias.
Education Law Blog
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