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Press releases and law firm thought leadership

This page is dedicated to keeping readers informed of the latest news and thought leadership articles from law firms across the globe.

If your firm wishes to publish press releases or articles, please contact Shehab Khurshid on +44 (0) 207 396 5689 or shehab.khurshid@legalease.co.uk

 

Legal Developments Worldwide

Articles contributed by 11KBW

View the listing for 11KBW

Possession Proceedings 28 August 2012

September 2012 - Public Law. Legal Developments by 11KBW.

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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

September 2012 - Public Law. Legal Developments by 11KBW.

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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

September 2012 - Public Law. Legal Developments by 11KBW.

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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

September 2012 - Public Law. Legal Developments by 11KBW.

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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

September 2012 - Public Law. Legal Developments by 11KBW.

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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. 

TRANSFER OF UNDERTAKINGS (PROTECTION OF EMPLOYMENT) AND AGE DISCRIMINATION

August 2012 - Employment. Legal Developments by 11KBW.

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I have been asked to cover the topic of Employment law within my half an hour speaking slot today. I have narrowed my subject down to Transfer of Undertakings and Discrimination, with the focus on providing an update on the recent spate of cases on service provision change and on the important developments in the law of age discrimination. Needless to say, in my presentation I shall not be able to cover the level of detail which is contained in my written paper, which I will leave you to read.

Procedural Fairness

August 2012 - Public Law. Legal Developments by 11KBW.

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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

August 2012 - Public Law. Legal Developments by 11KBW.

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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

August 2012 - Public Law. Legal Developments by 11KBW.

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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

August 2012 - Public Law. Legal Developments by 11KBW.

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Turning Point Limited v Norfolk County Council [2012] EWHC 2121 (TCC)

Public Procurement

August 2012 - Public Law. Legal Developments by 11KBW.

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Newcastle Hospital NHS Foundation Trust v (1) Newcastle PCT (2) North Tyneside PCT & Ors [2012] EWHC 2093 (QB)

WHAT IS A HIGHWAY?

August 2012 - Public Law. Legal Developments by 11KBW.

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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

August 2012 - Public Law. Legal Developments by 11KBW.

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Re. David Connolly's Application for Judicial Review [2012] NICA 18 (12 June 2012):

Homelessness - 20 June 2012

August 2012 - Public Law. Legal Developments by 11KBW.

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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

July 2012 - Public Law. Legal Developments by 11KBW.

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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

July 2012 - Public Law. Legal Developments by 11KBW.

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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.

Global litigation risks

July 2012 - Employment. Legal Developments by 11KBW.

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Will employment litgation become another UK import?
Written for The Lawyer, read article by Christopher Jeans QC and Daniel Oudkerk QC

Age Discrimination

July 2012 - Employment. Legal Developments by 11KBW.

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The title of my talk takes the form of a question: “How radical a change are the age discrimination provisions?”

The short answer is, “Very”, or, in the light of the two recent Judgments of the Supreme Court to this area of the law, “Very, very”.

Whistleblowing

July 2012 - Employment. Legal Developments by 11KBW.

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In Parkins v Sodexho Ltd [2002] IRLR 109 the EAT held that an employee can make a protected disclosure about a breach of his own contract of employment. This opened up the possibility that almost any grievance raised by an employee might amount to a protected disclosure.

TUPE ROUND-UP

July 2012 - Employment. Legal Developments by 11KBW.

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After a period of relative quiet, there has been a spate of TUPE cases over the last year. This paper looks at those cases, concentrating particularly on the following topics:

Working Time: Holidays

July 2012 - Employment. Legal Developments by 11KBW.

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Working time is a notoriously complex area, where the interplay between opaque judgments from the CJEU and the complexities of the Working Time Regulations 1998 is capable of causing uncertainty and confusion.

High Court Remedies following Edwards v Chesterfield

July 2012 - Employment. Legal Developments by 11KBW.

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The decision of the Supreme Court in Edwards v Chesterfield Royal Hospital NHS Foundation Trust & Botham v Minister of Defence [2011] UKSC 58 [2012] ICR 201 (“Edwards”) represents the latest word from our highest domestic court as to the availability of damages for losses arising following the termination of employment.

Confidential Information – What’s the Latest?

July 2012 - Employment. Legal Developments by 11KBW.

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Issues of confidence and confidential information are rarely out of the news. Whether the context is the privacy of celebrities, the disclosure of commercial confidences (in exciting arenas such as formula one racing) or attempts by employees to make use of their former employer’s trade secrets, issues of confidence interest the general public. Similarly, issues of confidence are rarely out of the courts.

Employees deciding together to establish a competing business: what are the legal principles

July 2012 - Employment. Legal Developments by 11KBW.

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In many cases where a person wishes to leave an employment and establish a new business, that person may wish to tell colleagues about the plans and to encourage them to join him or her in the new venture. It may be that there is disaffection in the workplace and that there is a general, if unexpressed, desire to move on.

Team Move Update

July 2012 - Employment. Legal Developments by 11KBW.

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What developments have there been now that the dust has settled on the Tullett litigation?

Changing terms and conditions and redundancies in an economic downturn

July 2012 - Employment. Legal Developments by 11KBW.

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The latest figures from the Office for National Statistics paint a gloomy picture of the UK economy: two successive periods of negative economic growth; in economic terms, a recession1.

Restraint of Trade/Recent Authorities

July 2012 - Employment. Legal Developments by 11KBW.

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As usual, the current crop of recent decisions in this area contain a real mix of the orthodox and the heterodox approach to the doctrine of restraint of trade, frequently within the same case.

STRATEGY AND TACTICS IN DEFENDING CITY WHISTLEBLOWING CLAIMS

July 2012 - Employment. Legal Developments by 11KBW.

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This talk addresses the essential elements of a whistleblowing claim in the context of the recent cases and considers strategies and tactics for employers and employees in high value claims:

LOCAL GOVERNMENT LAW UPDATE

June 2012 - Public Law. Legal Developments by 11KBW.

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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:

June 2012 - Public Law. Legal Developments by 11KBW.

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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

June 2012 - Public Law. Legal Developments by 11KBW.

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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.

Springboard Injunctions

June 2012 - Employment. Legal Developments by 11KBW.

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Whilst springboard injunctions are a well-established remedy, the precise circumstances in which they can be obtained, and their scope and duration, can often be unclear. Two recent decisions offer some helpful guidance. These are QBE Management Services Ltd v Dymoke [2012] EWHC 80 (QB) and Clear Edge UK Ltd v Elliot [2011] EWHC 3376 (QB).

Community care, section 21 and human rights:

May 2012 - Public Law. Legal Developments by 11KBW.

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 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

May 2012 - Public Law. Legal Developments by 11KBW.

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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

May 2012 - Public Law. Legal Developments by 11KBW.

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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

May 2012 - Public Law. Legal Developments by 11KBW.

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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

May 2012 - Public Law. Legal Developments by 11KBW.

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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

May 2012 - Public Law. Legal Developments by 11KBW.

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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

May 2012 - Public Law. Legal Developments by 11KBW.

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Clive Sheldon - QC debates the pros & cons of retrospective tax legislation

Public Sector Equality Duty (“PSED”)

May 2012 - Public Law. Legal Developments by 11KBW.

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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

May 2012 - Public Law. Legal Developments by 11KBW.

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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

May 2012 - Public Law. Legal Developments by 11KBW.

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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

May 2012 - Public Law. Legal Developments by 11KBW.

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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

May 2012 - Public Law. Legal Developments by 11KBW.

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Clive Sheldon QC debates the pros & cons of retrospective tax legislation

The Health and Social Care Act 2012: impact on adult social services

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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Note the Local Authorities (Alteration of Requisite Calculations) (Wales) Regulations 2012, SI 2012/521 (W.82).

OBSTRUCTION OF BRIDLEWAY

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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Section 149 of the Equality Act 2010 (“the 2010 Act”), which came into force on 5th April 2011, provides that:

ACADEMIES – LAND TRANSFERS

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

April 2012 - Public Law. Legal Developments by 11KBW.

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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

March 2012 - Public Law. Legal Developments by 11KBW.

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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

March 2012 - Public Law. Legal Developments by 11KBW.

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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

March 2012 - Public Law. Legal Developments by 11KBW.

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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

March 2012 - Public Law. Legal Developments by 11KBW.

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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

March 2012 - Public Law. Legal Developments by 11KBW.

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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

February 2012 - Public Law. Legal Developments by 11KBW.

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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

February 2012 - Public Law. Legal Developments by 11KBW.

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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

February 2012 - Public Law. Legal Developments by 11KBW.

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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

February 2012 - Public Law. Legal Developments by 11KBW.

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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

February 2012 - Public Law. Legal Developments by 11KBW.

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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].

TUPE AND COLLECTIVE AGREEMENTS

December 2011 - Employment. Legal Developments by 11KBW.

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Terms and conditions of employment are often found, especially in the public sector, not in the individual contracts of employment themselves, but in collective agreements between the employer and trade unions, collective agreements which are expressly incorporated into the individual contracts. If the employer and the unions agree changes in the collective agreement then the individual contracts will automatically be varied accordingly.

Freedom of Information Update

December 2011 - Public Law. Legal Developments by 11KBW.

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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

November 2011 - Public Law. Legal Developments by 11KBW.

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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

November 2011 - Public Law. Legal Developments by 11KBW.

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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

November 2011 - Public Law. Legal Developments by 11KBW.

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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

November 2011 - Public Law. Legal Developments by 11KBW.

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Amy Rogers

1. This paper addresses two aspects of the Localism Bill in two areas:
(i) pay restraint and transparency; and
(ii) local referendums.

Employment Law Update

November 2011 - Employment. Legal Developments by 11KBW.

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Peter Wallington QC

In my talk, and this paper, I will attempt to highlight some of the most important developments in Employment Law in the last year, with particular reference to those most likely to be of interest to those working in the local government sector, and will also highlight the key proposals for reforms, both procedural and substantive, issued for consultation by the Government earlier this year.

THE LOCALISM BILL AND THE GENERAL POWER OF COMPETENCE

November 2011 - Public Law. Legal Developments by 11KBW.

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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

November 2011 - Public Law. Legal Developments by 11KBW.

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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

November 2011 - Public Law. Legal Developments by 11KBW.

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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

November 2011 - Public Law. Legal Developments by 11KBW.

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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.

SEN, disabilities and independent schools

November 2011 - Employment. Legal Developments by 11KBW.

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(A) Disability discrimination - incl reasonable adjustments, admissions andexclusions
(B) Statements of SEN - parental preference, costs (H v Kent CC, the Slough case)
(C) Other matters - Academies, the Education Bill, the SEN Green paper

Procedural Control Mechanisms – Strike Out, Deposits, Stays and Costs

November 2011 - Employment. Legal Developments by 11KBW.

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Simon Forshaw

Introduction 1. The Employment Tribunal system is under attack! It is regularly exposed to criticism as being inefficient, costing those who participate in it too much money and amounting to a disproportionate burden on business. Such criticism has been made all the more fiercely of late both because of the economic climate and also because the Government has been reviewing the Employment Tribunal system with the express aim of reducing the burden placed on business by it.

Monetary remedies in the Tribunal (including interim relief); Maximising the value or...

November 2011 - Employment. Legal Developments by 11KBW.

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minimising the pain

Simon Devonshire QC

1. A recession tends to lead to more claims but fewer trials. Employees naturally look for ways to maximise the value of their claims – particularly by reference to causes of action that bust the cap for a ‘vanilla’ unfair dismissal - often (in the case of high value employees) by reference to the whistleblowing legislation.

RESCUE ME….INSOLVENCY ISSUES FOR EMPOYMENT LAWYERS

November 2011 - Employment. Legal Developments by 11KBW.

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Jane McCafferty

policy aim behind the legislation governing insolvency is that of facilitating the so-called ‘rescue culture’ by making insolvent employers more attractive to prospective purchasers. The policy aim behind employment protection legislation is to provide valuable rights for employees. It is unsurprising that, when these two policy aims collide, problems arise. 

Employment Law Update

November 2011 - Employment. Legal Developments by 11KBW.

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by Peter Wallington

In my talk, and this paper, I will attempt to highlight some of the most important developments in Employment Law in the last year, with particular reference to those most likely to be of interest to those working in the local government sector, and will also highlight the key proposals for reforms, both procedural and substantive, issued for consultation by the Government earlier this year.

Equal Pay

November 2011 - Employment. Legal Developments by 11KBW.

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by Andrew Blake

Equal pay continues to be a very hot topic in local government circles and, also, in employment law generally. As a result, in the last 12 months there have been a number of important appellate decisions, many involving local authorities. In addition many of the provisions in the Equality Act 2010 (‘the EA 2010’) came into force in October 2010 (although in most, but not all, respects the EA 2010 simply restates the provisions of the Equal Pay Act – ‘the EPA 1970’). 

Hersey! Is Contract law difference when applied to Employment? Part 1: Terms

November 2011 - Employment. Legal Developments by 11KBW.

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by Patrick Halliday

Employment contracts are distinctive. The most obvious reason for this is statuary intervention.

Garden Leave: Possibilities and Pitfalls

October 2011 - Employment. Legal Developments by 11KBW.

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"Garden Leave" is the practise of modifying an employee's role to protect an employer's legitimate interests, most often where an employee has given notice to leave work for a competition.

TACKLING AND PROVIDING FOR TUPE IN THE CONTEXT OF PROCURMENT

September 2011 - Public Law. Legal Developments by 11KBW.

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Peter Oldham QC

Settling Employment Claims: some recent developments

September 2011 - Employment. Legal Developments by 11KBW.

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Peter Wallington Q.C.1

The statutory context 1. The settlement of ordinary commercial disputes is familiar territory for all lawyers, and settlements rarely require any particular formalities beyond sufficient clarity as to the terms of the agreement. This is equally so for purely contractual disputes in the field of employment, but there the comparison stops. 

Human rights extend to Iraq, says Strasbourg

August 2011 - Public Law. Legal Developments by 11KBW.

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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

August 2011 - Public Law. Legal Developments by 11KBW.

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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

August 2011 - Public Law. Legal Developments by 11KBW.

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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

August 2011 - Public Law. Legal Developments by 11KBW.

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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. 

Ezsias v North Glamorgan NHS Trust: Dismissals for breakdown in trust and confidence

August 2011 - Employment. Legal Developments by 11KBW.

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Julian Milford

In this paper, I discuss the recent decision of the EAT (Keith J) in Ezsias v North Glamorgan NHS Trust UKEAT/0400/09 (18 March 2011)

EDUCATION LAW UPDATE

August 2011 - Public Law. Legal Developments by 11KBW.

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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

July 2011 - Public Law. Legal Developments by 11KBW.

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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

July 2011 - Public Law. Legal Developments by 11KBW.

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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? 

 

News of the World: a closure without closure? Will the stigma last?

July 2011 - Employment. Legal Developments by 11KBW.

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The closure of the News of the World leaves its employees facing an uncertain future. It does not take News International’s own Mystic Meg to predict that that future will inevitably involve litigation. But what is the legal landscape and what claims can we expect?

Chambers of James Goudie QC (11KBW)

June 2011 - Public Law. Legal Developments by 11KBW.

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11KBW Employment Law Conference took place this year in London and Leeds.
5th May 2011 – London
18th May 2011 – Leeds

Age Discrimination

June 2011 - Employment. Legal Developments by 11KBW.

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Written by Christopher Jeans QC

Some specific features: all are victims, all are beneficiaries
1. The Equality Act 2010 has brought most1 of the law discrimination under a single
roof...

Equal Pay

June 2011 - Employment. Legal Developments by 11KBW.

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Written by Nigel Porter

a. Material Factor and justification.
b. TUPE and Equal Pay.
c. Proper Comparators and same employment/single source.
d. Other recent cases.
e. The Equality Act 2010: The new provisions and the changes introduced by ss 64-83 of the
Equality Act: secrecy clauses, comparators and reporting and information obligations.
f. Codes of Practice and guidance on Equal Pay.

GARDEN LEAVE & POST TERMINATION RESTRAINTS THEIR INTERACTION AND THE LEGAL PROBLEMS GENERATED

June 2011 - Employment. Legal Developments by 11KBW.

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Written by Alistair McGregor QC

1. The origins of the garden leave injunction are to be found in the judgment of Lord St
Leonards VC in Lumley v Wagner given on 26th May 1852 (see I de GM&G 604 42 ER
687).

Strikes and Industrial Action - Wriiten by Daniel Stilitz QC

May 2011 - Employment. Legal Developments by 11KBW.

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1. The recent upsurge in reported cases on strikes and industrial action may well serve as a barometer of the current economic and political climate.  The level of legal activity in this area over the last year or so has perhaps been greater than at any time since the statutory balloting procedures were first introduced in the 1980s.  Those procedures have become more complex through subsequent amendment, in particular since 1992, thereby guaranteeing a fertile stream of novel points to be determined by the courts in times of industrial strife.

THE BRIBERY ACT 2010 (OR, WHY WE CAN’T GIVE YOU A ROLEX AND OTHER STORIES)

May 2011 - Employment. Legal Developments by 11KBW.

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1. The Bribery Act 2010 (“the Act”) will finally come into force on 1 July 2011.  Its aim is to reform the criminal law of bribery and create a new consolidated scheme of bribery offences to cover bribery both in the UK and, significantly, abroad.  It provides a modern criminal counterpart to the sanctions long-established in relation to bribery in civil law.

Localism Bill: Senior Pay and Accountability

February 2011 - Public Law. Legal Developments by 11KBW.

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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

February 2011 - Public Law. Legal Developments by 11KBW.

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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

February 2011 - Public Law. Legal Developments by 11KBW.

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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

February 2011 - Public Law. Legal Developments by 11KBW.

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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

February 2011 - Public Law. Legal Developments by 11KBW.

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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

February 2011 - Public Law. Legal Developments by 11KBW.

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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

February 2011 - Public Law. Legal Developments by 11KBW.

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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

February 2011 - Public Law. Legal Developments by 11KBW.

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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

January 2011 - Public Law. Legal Developments by 11KBW.

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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

January 2011 - Public Law. Legal Developments by 11KBW.

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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:

January 2011 - Public Law. Legal Developments by 11KBW.

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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

January 2011 - Public Law. Legal Developments by 11KBW.

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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

January 2011 - Public Law. Legal Developments by 11KBW.

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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

January 2011 - Public Law. Legal Developments by 11KBW.

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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

January 2011 - Public Law. Legal Developments by 11KBW.

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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

September 2010 - Public Law. Legal Developments by 11KBW.

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Case law update (2) – Procedures and Remedies

Case-law Update

September 2010 - Public Law. Legal Developments by 11KBW.

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Application of the Public Contracts Regulations 2006

The Human Rights Act: 10 Years On

September 2010 - Public Law. Legal Developments by 11KBW.

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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.

Equal Pay

September 2010 - Employment. Legal Developments by 11KBW.

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The bleak outlook for local authorities continues. There have been a number of recent judgments which have made life harder still for local authorities which are trying to defend themselves against multiple equal pay claims, brought by claimants supported by unions, or by no win, no fee solicitors, or by a combination of both.

Equality Act 2010

September 2010 - Employment. Legal Developments by 11KBW.

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The Equality Bill was published on 27 April 2009 and became an Act of Parliament just before the last general election on 8 April 2010. The Explanatory Notes state that the Act has two main purposes: to harmonise discrimination law, and to strengthen the law to support progress on equality.

Employment Law Update

September 2010 - Employment. Legal Developments by 11KBW.

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This paper considers recent developments in the case law which are likely to affect local authority employers. Legislative changes effected by the Equality Act are considered in Holly Stout’s paper, delivered in the next session.

Bias and the Code of Conduct

September 2010 - Public Law. Legal Developments by 11KBW.

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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

September 2010 - Public Law. Legal Developments by 11KBW.

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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

September 2010 - Public Law. Legal Developments by 11KBW.

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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

September 2010 - Public Law. Legal Developments by 11KBW.

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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

September 2010 - Public Law. Legal Developments by 11KBW.

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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.

Strike Action

September 2010 - Employment. Legal Developments by 11KBW.

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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).

Equal Pay

September 2010 - Employment. Legal Developments by 11KBW.

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This talk aims to give a brief overview of issues arising on equal pay claims. At the same time it attempts to point out areas either of particular current interest or controversy, or where equal pay litigators need to be aware of specific substantive or procedural issues.

Age Discrimination

September 2010 - Employment. Legal Developments by 11KBW.

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At the most general level the structure of the Employment Equality (Age) Regulations 2006 ("the Regulations") appears to be similar to that adopted in the other anti-discrimination legislation.

Team Moves

September 2010 - Employment. Legal Developments by 11KBW.

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This talk considers the implications of the recent decision of the High Court in Tullett Prebon v BGC.1 It considers the legal remedies available to the gamekeeper, the pitfalls faced by the poacher, and the legal and strategic lessons to be drawn from the case.

Education Law Blog

September 2010 - Public Law. Legal Developments by 11KBW.

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11KBW Education Team are proud to announce the launch of their Education Law Blog www.education11kbw.com