Severance Payments

May 18th, 2022 by James Goudie QC in Best Value

The Department for Levelling Up etc published Statutory Guidance on 12 May 2022 on the making and disclosure of “Special Severance Payments” by local authorities in England. The Guidance is expressed to be “part of the best value regime”, is is issued under Section 26 of the Local Government Act 1999, and regard must be had to it pursuant to Section 3 of that Act.

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Subsidy Control

May 10th, 2022 by James Goudie QC in Capital Finance and Companies

Public funding/support given in the UK since 1 January 2021 has no longer been subject to EU State Aid Law. Compliance has since then been required with the Trade and Co-Operation Agreement between the UK and the EU (the TCA), incorporated into domestic law by Section 29 of the EU (Future Relationships) Act 2020.  Now the Subsidy Control Act 2022 (the Act) has been enacted, and Regulations are to be made, and Guidance provided thereunder, including with respect to “Subsidies of Particular Interest” and “Subsidies of Interest”, under Section 11 of the Act. Main purposes of the Act are to provide detail on the implementation of the TCA and to define “subsidy”.

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Homelessness – R (Elkundi) v Birmingham City Council and R (Imam) v Croydon LBC

May 9th, 2022 by James Goudie QC in Housing

In joined cases (2022) EWCA Civ 601, R (Elkundi) v Birmingham City Council and R (Imam) v Croydon LBC the principal issue in the Birmingham case was the nature of the duty owed by local authorities (LHAs to homeless persons, under Section 193(2) of the Housing Act 1966 (the 1966 Act), which provides that a LHA shall secure that accommodation is available for the applicant; and the sole issue in the second case concerned the circumstances in which a Court may, in the exercise of its discretion refuse a mandatory order to enforce a duty owed under Section 193(2).

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Judicial Review of Policies

May 4th, 2022 by James Goudie QC in Judicial Control, Liability and Litigation

R (All the Citizens) v SoS (2022) EWHC 960 (Admin), a Divisional Court is concerned with whether there is a legal duty, enforceable by judicial review, to create and maintain records so that they are available for posterity, and whether policies are enforceable as a matter of public law.

At para 17, the Court addressed a procedural question. They said, at para 17 (emphasis added):-

“It should not be left to parties (or, for that matter, the court) to have to infer, from omissions in skeleton arguments, what grounds of claim have been abandoned. If a party no longer pursues a ground of claim, that ought to be made clear to the court and to the other parties. To do otherwise is inconsistent with the obligations to:

(1)     help the court to further the overriding objective (which includes identifying the issues at an early stage): see CPR 1.3 and 1.4(2)(b); Read more »

 

Irrationality

April 28th, 2022 by James Goudie QC in Human Rights and Public Sector Equality Duty

In Gardner v SoS for Health and Social Care (2022) EWHC 967 (Admin) a Divisional Court dismisses claims under the Human Rights Act, but upholds common claims in respect of documents that set out an “irrational” policy in “failing” to advise that where a Covid asymptomatic patient was admitted to a Care Home, he or she should, as far as practicable, be kept apart from other residents for 14 days. At para 139 the Court stated that it cannot be said, as a general proposition, that the adjudication of past alleged breaches of duty which have now been repeated is always academic or a hypothetical exercise in the context of judicial review.

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Voter Identification

April 27th, 2022 by James Goudie QC in Elections and Bylaws

The appeal in R (Coughlan) v Minister for the Cabinet Office (2022) UKSC 11 concerned a challenge brought by Mr Coughlan to orders made by the Minister for the Cabinet Office in respect of Braintree District Council and nine other local authorities (“the Pilot Orders”). These Pilot Orders authorised schemes to temporarily change the rules set out in secondary legislation governing local elections. These schemes, which were implemented in ten local authority areas in respect of the local government elections in May 2019, each introduced a new requirement for some form of voter identification for those local elections.

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Subsidy Control / State Aid

April 21st, 2022 by James Goudie QC in Capital Finance and Companies

IN VOLOTEA v COMMISSION, Joined Cases C-331/20P and C-343/20P, Advocate General Capeta addresses, at paras 62-114 inclusive, the Market Economy Operator Principle ( the MEO ). The applicability of the MEO test is governed by the NATURE of the activities, that is by whether the public authority intervention is through an activity comparable to what could be envisaged in the market. The test is applicable to all situations in activities are performed by the authority comparable to market activities. These include when the authority acts in a way comparable to a market operator. This is decided by an objective enquiry into HOW the authority engages with undertakings on a given market, irrespective of the form and reasons for that engagement.

 

 

Privacy

April 19th, 2022 by James Goudie QC in Judicial Control, Liability and Litigation

In Underwood v Bounty (2022) EWHC 888 ( QB ) claims for breach of the Data Protection Act Principles and for privacy/misuse of private information failed. Nicklin J reiterated at para 50 in relation to the tort of misuse of private information that liability is determined using a 2 stage test: (1) whether the claimant has “a reasonable expectation” of privacy in the relevant information; and, if so (2) whether that is outweighed by “countervailing interests”.

 

 

Constitutional Principles

April 14th, 2022 by James Goudie QC in Judicial Control, Liability and Litigation

In Somerset County Council v NHS Somerset (2022) EWFC 31 the President of the Family Division reiterates two fundamental principles of constitutional law : –

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Heritage Assets

April 12th, 2022 by James Goudie QC in Planning and Environmental

London Parks & Gardens Trust v Minister of State (2022) EWHC 829 (Admin) concerns whether there will be “substantial harm” to heritage assets, and consideration of the impact of a proposed development on relevant heritage assets. The “high test” is whether potential harm will be: “substantial”, rather than “less than substantial” for the purposes of the NPPF, that is a serious degree of harm to the asset’s significance. The significance of the historic asset does not have to be “drained away”. The test is “substantial harm”, not any gloss, such as “draining away”.