Public Sector Law Blog

Regular opinion pieces on issues of interest to public sector lawyers from Practical Law Public Sector and leading commentators.

Recommended actions for e-mail for week ending 22 February 2012

Posted by Practical Law Public Sector Law on 24th February 2012.

PLC Public Sector reports: 

Make sure that you have not missed a key development in your area of the law by reviewing our latest list of recommended actions.

Local authority powers: those advising local authorities should note that the Localism Act 2011 (Commencement No 3) Order 2012 (SI 2011/411) brought the general power of competence set out in the Localism Act 2011 into force on 18 February 2012 for “principal local authorities” (which include London boroughs and county, district, metropolitan and unitary authorities), English fire and rescue authorities, integrated transport authorities, passenger transport executives, combined authorities and economic prosperity boards. The government has also put a draft order before Parliament, which will allow parish councils that meet certain conditions to use the new power from April 2012. Local authorities need to consider how they intend to use this power and what guidance and policies they need to put into place with regard to its use.

Care home fees: those advising local authorities on how they set the fees they pay to care homes that they contract with to fulfil their obligations under the National Assistance Act 1948, should note the decision in Bevan & Clarke LLP and others v Neath Port Talbot County Borough Council.  The decision confirms that such decisions are amendable to judicial review.  The case also provides an overview of the types of challenge that a local authority may face (and in this case how an authority can resist these challenges).

Contaminated land: Planning and environment lawyers should note that draft revised statutory guidance for England and Wales on the contaminated land regime under Part 2A of the Environmental Protection Act 1990 has been laid before Parliament and the National Assembly for Wales, respectively. 

Employment: employment lawyers will be interested to note that:

  • The Equality Act 2010 (Amendment) Order 2012 (SI 2012/334) will, from 6 April 2012, amend section 147 of the Equality Act 2010 to allow a solicitor negotiating exit terms or bringing a claim on an employee’s behalf to also be their “independent adviser” for the compromise agreement.
  • In University of Stirling v University and College Union, the EAT held that, for the purposes of collective consultation under section 195 of the Trade Union and Labour Relations (Consolidation) Act 1992, fixed term employees were dismissed on expiry of their contracts for a “reason relating to them as individuals” and not for redundancy. Therefore the collective consultation obligations under section 188 of TULRCA did not apply to them. Public authorities should exercise caution when relying on this decision as the general view has previously been that an expiry and non-renewal of a fixed-term contract does give rise to a redundancy.

Equality duties: those advising on how a public authority can comply with the public sector equality duty should note:

Freedom of Information: Information lawyers will be interested in a series of judgments published this week:

  • In Sugar vBritish Broadcasting Commission and another, the Supreme Court upheld a Court of Appeal decision that a report created for the BBC about its Middle East news coverage was outside the scope of the Freedom of Information Act 2000 (FOIA) because it was held for the purposes of journalism.
  • In two judgments, the ECJ has provided guidance on the extent of the exemption for authorities acting in a legislative capacity from having to provide access to environmental information under the Aarhus Convention. The exemption is available to all authorities involved in the legislative process but it does not apply when the process is concluded or to ratifying secondary legislation.
  • In Greenwood v Information Commissioner and another, the First-tier Tribunal (Information Rights) held that a register of interests of senior council officers held by Bolton Metropolitan Borough Council must be disclosed, following a request made under FOIA, but that details of memberships of associations could be redacted along with home addresses and third party personal information. Further, details of other business interests should only be disclosed for those with senior officer status.

Local authority governance: those advising local authorities in relation to changes to their governance structure should note that the Local Authorities (Elected Mayors) (Elections, Terms of Office and Casual Vacancies) (England) Regulations 2012 have been laid before Parliament. The Regulations deal with elections for the return of an elected mayor following a referendum in which voters were in favour of adopting a mayor and cabinet executive.

Pay policies: local authorities should be aware that government guidance has been published setting out the key policy principles behind the pay accountability provisions in section 38 of the Localism Act 2010.

Planning: Planning lawyers will be interested to note:

  • The decision of the High Court in R (Altunkaynak) v Northamptonshire Magistrates’ Courtand another that a prosecution for breach of enforcement notices was not an abuse of the process of the court. The application for judicial review was dismissed. This decision illustrates an example of a situation where an appeal against an enforcement notice would have succeeded if an appeal had been brought and the importance of raising any relevant grounds of appeal against an enforcement notice during the appeal period.
  • The planning propriety guidance for Ministers published by the government.

Public procurement: public procurement lawyers should note the Procurement Policy Note on the use of pre-qualification questionnaires (PQQs) and update procurement policies accordingly. While complying with the requirements of the note is only obligatory for central government organisations, the government recommends that all contracting authorities follow the same guidance.

Consultations: this week there were consultations published on:

The government has also published a summary of responses to its consultation on the consideration of sensitive information in civil proceedings.

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