Leisure

May 7th, 2013 by James Goudie KC in Environment, Highways and Leisure

The Growth and Infrastructure Bill has received the Royal Assent (“the 2013 Act”).  Section 16 of the 2013 Act will amend the law on the registration of new town and village greens under Section 15(1) of the Commons Act 2006 (“the 2006 Act”).  It does this by inserting new provisions –Section 15C and Schedule 1A into the 2006 Act – which exclude the right to apply to register land as a green when any one of a number of events, known as ‘trigger events’, have occurred within the planning system in relation to that land. The trigger events are prescribed by Schedule 1A to the Commons Act 2006. For example, where an application for planning permission is first publicised then the right to apply to register that land as a green is excluded. Decisions regarding whether land should be developed or not will be taken within the planning process.

The new Section 15C(2) of the Commons Act 2006 provides for ‘terminating events’, which are also set out in new Schedule 1A to that Act. If a terminating event occurs in relation to the land in question, then the right to apply for registration of a green under Section 15(1) is again exercisable. For example, if the right to apply to register land has been excluded because an application for planning permission has been publicised, the right to apply for registration of the land as a green again becomes exercisable if planning permission is refused and all means of challenging that refusal have run their course.

The change takes effect from 25 April 2013, and affects applications under Section 15(1) of the Commons Act 2006 made on or after that date.  Applications made before that date are unaffected.

The 2013 Act makes two other amendments directly related to the law on town and village greens.  First, Section 14 of the 2013 Act amends Section 15(3)(c) of the 2006 Act, which  applies where recreational use of land as of right has ceased before an application is made.  This change will come into force on a date to be appointed by Order. Second, there is the introduction of Landowner Statements, which bring to an end recreational use as of right on the land to which the Statement relates, through new Sections 15A and 15B of the Commons Act 2006 (as inserted by Section 15 of the 2013 Act). Section 15A makes provision for the deposit of Landowner Statements as well as accompanying maps.  Section 15B provides for certain information relating to such deposits to be recorded on a publicly available register.  These provisions will come into force on a date to be appointed by Order, and will be supported by Regulations.

DEFRA has issued Interim Guidance to Commons Registration Authorities on Section 15C of the Commons Act 2006, the exclusion of the right to apply under Section 15(1) to register new greens.

 

Decision Making and Contracts

May 2nd, 2013 by James Goudie KC in Decision making and Contracts

Were a decision and an impending decision by Barnet Council, to outsource a high proportion of its functions and services to private-sector organisations, lawful? That was the issue in R (Nash) v Barnet LBC, [2013] EWHC 1067 (Admin), a judicial review challenge brought by a local resident.  The challenge failed at a rolled-up hearing. There were three grounds of challenge: non-compliance with best value consultation obligations; breach of the PSED; and breach of fiduciary duty to council tax payers. A procurement challenge was not pursued.

The first question was whether the claim was in time.  The Claimant sought to rely on the House of Lords decision in R (Burkett) v Hammersmith & Fulham LBC [2002] 1 WLR 1593, where planning permission had been preceded by a resolution approving the award subject to certain conditions.  However, the Judge said, at para 41:

“… I do not believe that Burkett is authority for the proposition that in every situation in which a public-law decision is made at the end of a process which involves one or more previous decisions – what I will refer to as “staged decision-making” – time will run from the date of the latest decision, notwithstanding that a challenge on identical grounds could have been made to an earlier decision in the series. In my judgment it is necessary in such a case to analyse carefully the nature of the latest decision and its relationship to the earlier decision(s). I believe the true position to be as follows. If the earlier decision is no more than a preliminary, or provisional, foreshadowing of the later decision, Burkett does indeed apply so that the later, “final”, decision falls to be treated as a new decision, the grounds for challenging which “first arise” only when it is made. But if the earlier and later decisions are distinct, each addressing what are substantially different stages in a process, then it is necessary to decide which decision is in truth being challenged; if it is the earlier, then the making of the second decision does not set time running afresh. I accept that the distinction may in particular cases be subtle, but it is in my view nonetheless real and important.”

On that basis, the challenge on the basis of failure to consult was out of time. Nor was it appropriate to extend time.  The same applied to breach of fiduciary duty, and to the primary case on the PSED.  Permission therefore was largely refused, but the Judge went on to express his views on the substantive issues. 

As to the best value consultation duty, under Section 3 of the Local Government Act 1999, as amended by the Local Government and Public Involvement in Health Act 2007, the Judge said, at paras 74 and 75:

“74 …  It is hard to see why authorities should be entitled to fulfil their duty to consult in a way which avoided seeking views on the central issues raised by the substantive duty.

75.   I do not believe that the view which I have taken would put authorities under any unreasonable burden. The statutory language leaves them with a very broad discretion as to how to satisfy the obligations under section 3, as indeed it appears that the Government intended. I would make four particular points:

(1)        I fully accept that it cannot have been the statutory intention that every time that an authority makes a particular operational decision, by way of outsourcing or otherwise, it is required by section 3 to consult about that decision simply because that could be said to be part of “the way in which” it performs its functions. … in this context that phrase connotes high-level issues concerning the approach to the performance of an authority’s functions, and it is about those and not about particular implementation that consultation is required.

(2)        Because here the Council never set out to consult about its outsourcing programme at all, the present case is not a good occasion to offer guidance on the form that such a consultation might have taken. The essential is simply that the representatives should have been given the opportunity to express views or concerns about outsourcing the functions or services in question that could inform the Council’s decision-taking both on whether to proceed and on matters requiring attention in the arrangements eventually made. I repeat that that does not mean that it should have consulted on all the particular decisions, great or small, that fell to be taken by way of implementation …

(3)        … useful responses are most likely to be obtained if consultees are informed of the broad context in which outsourcing decisions have to be taken, …  consultation is best timed as part of the annual budgetary process. …

(4) The statute provides for consultation with representatives “of the four classes specified.”                                                                                                                                                                                                                

As to the PSED under Section 149 of the Equality Act 2010, the Judge said, at para 80:  

“The Claimant submits first that the Council should have conducted an EIA prior to making the 2010/2011 decisions. … If I had granted permission I do not believe that I would have found a breach of the public sector equality duty in this respect. Such impact as the outsourcing of the functions and services in question might have on persons with protected characteristics was not liable to affect the basic decision to proceed: detailed consideration would only be required when the details of the outsourcing arrangements were being worked out.”

As regards a particular contract and the PSED, the Claimant’s case was that the Council had inadequate information about the potential impact of the changes.  The Judge did not believe that there was an arguable breach of duty.  The Judge observed, at para 85:

“Public sector equality challenges are rather too easily advanced in vacuo. …”

Finally, as regards breach of fiduciary duty, the Judge said, at para 88:

“Views can no doubt legitimately differ about the degree of financial analysis appropriate before taking a decision to proceed with outsourcing as opposed to the other options which were appraised.  But the evidence does not come close to establishing the kind of reckless disregard of the principles of financial planning or management that is necessary to make good a claim of this kind.”

 

Highways

May 1st, 2013 by James Goudie KC in Environment, Highways and Leisure

What is the status of a non-statutory Code of Practice?  This question has been considered by the Court of Appeal, in the context of the duty to maintain a highway pursuant to Section 41 of the Highways Act 1980 (“HA 1980”), in Devon County Council v TR [2013] EWCA Civ 418, in which Judgment was given on 30 April 2013.  The highway authority successfully appealed against a decision that it had been liable for a road traffic accident and that the driver had not been negligent at all.

TR was the driver of a Land Rover on a country road. Whilst he was in the act of overtaking a slower-moving vehicle, his Land Rover left the road to the nearside and his passengers were very seriously injured in the ensuing crash into trees alongside the road. They sued him. He made a third-party claim against the Council.  He alleged that the defective state of the offside of the road was what had caused him to lose control.

The road in question was part of what is mostly a winding and hilly country road. After a winding and steep section of road, and a right hand bend, the road ahead opened up into a straight section which gave ample visibility to overtake. The road was a single carriageway in each direction. At some points it had no line markings at all, but on the section where the accident occurred there was a long dash centre white line and solid white lines down each edge. On both sides there were soft grass verges. On TR’s nearside there was a ditch with trees beyond it, approximately level with the road surface. On his offside, there was a noticeable and quite steep short bank down into a ditch, and a hedge beyond it.

There was damage to the offside (east) edge of the tarmac, both outside and (in places) over and inside the continuous white edge line. This is common enough where the outer edge of the tarmac meets a soft grass verge. It is caused by heavy vehicles running along or over the tarmac’s edge with their tyres. It is known to highways engineers and maintenance people as “overriding” damage.

The area of overriding damage was 51 metres long. At its widest the damaged area extended just under 6 inches inside the edge of the continuous white edge line and, in places, obscured or obliterated that line. The deepest part of the damaged area was something more than 3 inches deep. TR must have put his offside tyres into the damaged area, at a point before the place at which it intruded most into the carriageway, and at a point where the continuous white edge line was either missing or difficult to see.

Hughes LJ, as he then was, observed that, as is well known, the duty of the highway authority evolved from the common law duty of the local inhabitants to maintain a highway. That duty was an absolute one but was enforceable only by what today would be called a public law action. The inhabitants were not liable for any private loss caused by the state of the road, unless there was misfeasance, as distinct from nonfeasance or simple failure to maintain. That origin is the explanation for the manner in which the law has been expressed since the Highways Acts 1959 and 1961, and in which it now appears in HA 1980. The duty to maintain contained in Section 41 (which includes repair) is now broken by mere nonfeasance. It remains an absolute duty, and it may be invoked not only in relation to civil claims against the authority arising out of an accident but also by action to enforce the maintenance of the road. It is a duty to put and keep the highway in such a state that it does not entail danger to those who use it in the manner ordinarily to be expected. However, so far as civil claims arising out of accidents arising from non-maintenance are concerned, the liability of the authority is limited by Section 58 to the case where it has not taken such care as was in all the circumstances reasonably required to render the highway not dangerous to traffic. The onus of proving that all reasonable care was taken lies on the authority.

The issues which called for decision were therefore whether there was a breach of Section 41, either whether the road was in a condition which exposed to danger those using it in the ordinary way; if so, whether the accident was caused by that breach; if so, whether the Council made out the statutory defence under Section 58, ie of taking all reasonable care; and, if not, whether there was any contributory negligence on the part of TR.

The road was dangerous, at least in places.  However, in order to succeed in a claim made on the basis of a breach of Section 41 it is not enough to show that the highway was dangerous somewhere other than where the accident happened; it must be shown that it was dangerous where the accident occurred, and that the accident occurred as a result of the danger.

In this case the point of entry into the rut was dangerous.  A causative breach of Section 41 was made out.

The principal issue on the statutory defence under Section 58 was whether Devon inspected the road sufficiently often.  Devon’s settled practice for this road and a great many others of the same kind in the County was to inspect at six monthly intervals. The trial judge found that this was not enough to discharge the onus laid upon Devon by Section 58 to show that it had taken such care as was in all the circumstances reasonably required to secure that the part of the highway to which the action relates was not dangerous to traffic.  This is where the Code of Practice fitted in.

There was and is a non-statutory Code of Practice: “Well maintained highways”.  One of a great many areas of practice which is traversed by the Code is frequency of inspection.  In addition, Devon had its own manual for road inspection and the treatment of defects.  The judge concluded that Devon had failed to make out the statutory defence because it had not justified its departure from the recommended inspection interval referred to in the Code. She held that six monthly inspection was insufficient, both generally and specifically in relation to this particular road. Her finding was not simply that six monthly inspection was insufficient, but that only monthly inspection, as per the Code, would discharge the duty to take reasonable care.

The Court of Appeal said that, in adopting this approach, the Judge fell into error.  Hughes LJ, with whom Lloyd LJ and Sir Stanley Burnton agreed, said, from paragraph 20:

“Despite the recognition in the opening words that the code was non-mandatory, this approach amounted to treating it as a mandatory standard which had to be adhered to unless there was a positive reason to depart from it. Whilst the code is clearly evidence of general good practice, its status must not be overstated. It has no statutory basis …”

“The code does not set out mandatory rules. It is evidence of good practice. Authorities must exercise their own judgment.”

“When it comes to the specific issue of inspection intervals, other considerations will clearly include traffic use, experience, the frequency of adverse incidents and the like.”

“It cannot amount to a rule that it will of itself be a want of reasonable care to adopt a different inspection interval unless some particular process of reasoning is passed through, and set out somewhere in writing; if it did, that also would be to make the code a mandatory instrument.”

“At the very least, the evidence of the practice of other authorities pointed towards a respectably held view, amongst professionals charged with highways maintenance, that six monthly inspections of local distributor roads were a reasonable response to the duty to maintain. On the well understood Bolam principle that evidence went towards showing that Devon had exercised reasonable care in its general policy for such roads.”

“There appears to have been no evidence of the exact age of Devon’s practice, but if, as appears, it had been applied to local distributor roads generally for a significant period without problems in the form of avoidable accidents or otherwise, that was in itself some evidence that reasonable care was taken.”

“For these reasons, the judge’s finding that Devon’s adoption of an inspection frequency of six months for local distributor roads generally was a want of reasonable care cannot stand. It was founded on an erroneous approach to the code.”

“However, the judge also held that this particular road called for greater frequency of inspection. Although that finding was in part predicated upon her flawed findings about the policy for local distributor roads generally, the evidence before her was by no means confined to the general. It extended to the detailed inspection reports for this road, over a period of the three and a half years before this accident. … Despite the flawed approach to the policy of Devon in relation to local distributor roads generally, it is clear that there was sufficient evidence to justify the judge’s conclusion that this particular road needed inspection at shorter intervals than six monthly, and I see no warrant for interfering with it. I would accordingly uphold her finding that the statutory defence had not been made out, whilst rejecting her wider basis that Devon’s policy in relation to local distributor roads generally betrayed a lack of reasonable care because it amounted to a departure, without sufficient reason explained, from the non-statutory recommendations contained in ‘Well maintained highways’.”

Finally, the Court of Appeal concluded that TR was 50% contributorily negligent.

 

Liability

April 17th, 2013 by James Goudie KC in Judicial Control, Liability and Litigation

Section 77 of the Building Act 1984 (“the 1984 Act”) relates to dangerous buildings.  If it appears to a local authority that a building or structure, or part of a building or structure, is in such a condition, or is used to carry such loads, as to be dangerous, the authority may apply to a magistrates’ court, and the court may, where danger arises from the condition of the building or structure, make an order requiring the owner thereof to execute such work as may be necessary to obviate the danger or, if he so elects, to demolish the building or structure, or any dangerous part of it, and remove any rubbish resulting from the demolition, or where danger arises from overloading of the building or structure, make an order restricting its use until a magistrates’ court, being satisfied that any necessary works have been executed, withdraws or modifies the restriction.

Section 78 of the 1984 Act relates to emergency measures in the case of dangerous buildings. Subsection (1) provides that, if it appears to a local authority that a building or structure, or part of a building or structure, is in such a state, or is used to carry such loads, as to be dangerous, and immediate action should be taken to remove the danger, they may take such steps as may be necessary for that purpose.

Subsection (7) of Section 78 provides that where in consequence of the exercise of the powers conferred by Section 78 the owner or occupier of any premises “sustains damage”, but Section 106(1) of the 1984 Act does not apply, because the owner or occupier “has been in default”, the owner or occupier may apply to a magistrates’ court to determine whether the local authority were justified in exercising their powers under this section so as to occasion the damage sustained, and if the court determines that the local authority were not so justified, the owner or occupier is entitled to compensation, and section 106(2) and (3) applies in relation to any dispute as regards compensation arising under the subsection.

Section 106 provides (emphasis added):-

            “(1) A local authority shall make full compensation to a person who has sustained damage by reason of the exercise by the authority, in relation to a matter as to which he has not himself been in default, of any of their powers under this Act.

(2) Subject to subsection (3) below, any dispute arising under this section as to the fact of damage, or as to the amount of compensation, shall be determined by arbitration.

(3) If the compensation claimed does not exceed £50, all questions as to the fact of damage, liability to pay compensation and the amount of compensation may on the application of either party be determined by, and any compensation awarded may be recovered before, a magistrates’ court.”

Manolete Partners PLC v Hastings Borough Council [2013] EWHC 842 (TCC), Judgment on 12 April 2013, concerned the entitlement of the Claimant to make a claim against the Council under Section 106 of the 1984 Act for compensation as a result of the Council exercising its powers to prevent access to Hastings Pier under Section 78.  The Council’s main defence was that the Claimant was “in default” and therefore Section 106 did not apply.  Ramsey J rejected this defence.  He held that “default” required breach of an obligation to do something imposed by the 1984 Act itself, and did not extend to breach of a provision of another statute. The Claimant tenant of a bingo hall and amusement arcade on the Pier was not in default of any of the provisions of the 1984 Act.  The party in default was the owner of the Pier structure, who was responsible for its dangerous condition or state.

 

 

Election “Purdah”

March 21st, 2013 by James Goudie KC in Elections and Bylaws

The period just before local authority Elections when there are restrictions on publicity is defined as beginning with the last date for publication of Notice of the Election.  In 2013 that date is Tuesday 26 March.  The restrictions apply from then.

Authorities must have regard to the “Code of Recommended Practice on Local Authority Publicity”, issued under Section 4 of the Local Government Act 1986, revised in 2011, and available on the CLG website. Paragraphs 33-35 inclusive (Care during periods of heightened sensitivity) are of particular relevance. They provide:-

“33.     Local authorities should pay particular regard to the legislation governing publicity during the period of heightened sensitivity before elections … It may be necessary to suspend the hosting of material produced by third parties, or to close public forums during this period to avoid breaching any legal restrictions.

34.       During the period between the notice of an election and the election itself, local authorities should not publish any publicity on controversial issues or report views or proposals in such a way that identifies them with any individual members or groups of members. Publicity relating to individuals involved directly in the election should not be published by local authorities during this period unless expressly authorised by or under statute. It is permissible for local authorities to publish factual information which identifies the names, wards and parties of candidates at elections.

35.       In general, local authorities should not issue any publicity which seeks to influence voters….”

 

 

Consultation

February 26th, 2013 by James Goudie KC in Council Tax and Rates

In R (Stirling) v Haringey LBC (2013) EWCA Civ 116 the Court of Appeal were concerned with a claim for Judicial Review of the Council’s Council Tax Reduction Scheme pursuant to Section 10 of the Local Government Finance Act 2012 and Regulations thereunder, replacing Council Tax Benefit.  The Council were required to, and did, publish a draft Scheme and consult upon it, against the background of a 10% reduction in the funding given by Central Government to local authorities for council tax support.  The challenge was as to the consultation process.

There were three grounds: (1) that consultees were not provided with sufficient information to enable them to appreciate that there were alternatives to the draft scheme;  (2) that the information provided in the Consultation Document, as to the shortfall that would have to be met by the Council, was not accurately and fairly presented; and (3) that the Council should have told consultees about the Transitional Grant Scheme (“TSG”), and asked them if they wished to make any, or any further, responses in the light of the availability of that Scheme.  The second ground was not pursued in the Court of Appeal.

Dismissing the first ground, Sullivan LJ said, at paragraph 15:

“It is one thing to say that when options for change are presented in a consultation paper … they must be fairly presented, it is quite another to submit … that in order to be fair a consultation paper must present information about other options that have been rejected. What fairness requires depends on the circumstances of the particular case. In some statutory contexts a decision maker may be required, or may choose to consult as to which of a number of options should be adopted.”

However, Sullivan LJ continued, in paragraph 16, alternatives to a preferred scheme do not in all cases have to be mentioned as having been rejected.  At paragraph 18, Sullivan LJ stated that, in the particular statutory context, fairness did not require the Council, in the consultation process, to mention other options which it had decided not to incorporate into its published draft Scheme.  Much less did fairness require that the Consultation Document contain an explanation as to why these options were not incorporated in the draft Scheme.  At paragraph 19, Sullivan LJ went on to say that, evenif the statutory scheme had been less prescriptive and more open-textured as to the subject matter of the consultation process, he would not have concluded that the Consultation Document’s failure to mention the other possible ways of meeting the shortfall in Central Government funding rendered the consultation process unfair. The existence of the three options relied upon by the Appellant – raising Council Tax, reducing other Council services or utilising some of the Council’s reserves – were all reasonably obvious ways of meeting a shortfall in Central Government funding, and the form of the Consultation Document did not prevent consultees from suggesting them as possibilities. This was not a case in which the failure to mention the three options in the Consultation Document might have had the consequence that the decision-maker would have failed to appreciate their existence. The full Council would have been well aware of these three ways of meeting a shortfall in Central Government funding.  

Dismissing the third ground, the Court of Appeal held that the change of circumstance constituted, in the public domain, by the TSG, though plainly relevant, was not a change of such significance that the Council was bound to draw attention to it, or to commence the consultation process afresh.

 

Land Disposal

February 25th, 2013 by James Goudie KC in Land, Goods and Services

In R (London Jewish Girls’ High Ltd) v Barnet LBC, Lawtel AC9301237, Mitting J, on 20 February 2013, dismissed the claim, which concerned the disposal of land by a local authority for “best consideration” under s.123 of the Local Government Act 1972.  The Court was entitled to have regard to the consideration offered as at the date of the hearing of the claim for judicial review, and not simply the competing offers as they stood before the decision maker.  On this basis, the proposed sale did not breach s.123 in circumstances where the developer’s proposal was clearly the better bid, having regard to the cash offered together with overage payments. Mitting J went on give guidance (obiter) as to what matters could be treated as consideration for the purposes of s.123. He held that the value of affordable housing units as part of a development scheme and contributions under a section 106 agreement could not amount to consideration within the meaning of s.123, however he held, tentatively, that nomination rights over affordable housing were capable of amounting to consideration on the basis that these were benefits accruing to the Council from the use of the land that are of commercial and monetary value to the Council.

 

Public Health

February 11th, 2013 by James Goudie KC in Local Authority Powers

The Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013, Statutory Instrument 2013 No. 218 (“the Regulations”) make provision in relation to Health and Wellbeing Boards established under Section 194 of the Health and Social Care Act 2012 (“the 2012 Act”) (Part 2), local authority public health functions (Part 3) and review and scrutiny of the local health service by local authorities (Part 4).

Part 2 modifies provisions in primary legislation relating to a Committee appointed under Section 102 of the Local Government Act 1972 (“the 1972 Act”) in so far as those provisions relate to Health and Wellbeing Boards and provides that certain  provisions do not apply to Health and Wellbeing Boards. The modification and disapplication provisions also apply to Sub-Committees of Health and Wellbeing Boards and Joint Sub-Committees of such Boards.

Part 3 makes provision for the weighing and measuring of children in attendance at schools under arrangements provided for by local authorities.

Part 4 makes provision in relation to the health scrutiny functions of local authorities. Section 244 of the National Health Service Act 2006 confers a power to make regulations on review and scrutiny of matters relating to the Health Service (“health scrutiny”) by local authorities. The 2012 Act made various changes to the system of health scrutiny. This included provision for health scrutiny functions to be conferred on local authorities directly with powers to enable those authorities to make various arrangements for the discharge of those functions, including discharge by Overview and Scrutiny Committees. Part 4 makes provision accordingly.

The Regulations also provide for exemptions from the Community Right to Challenge under the Localism Act 2011 for certain public health services to be provided by local authorities, two of which are time-limited exemptions.

 

 

Disabled Election Candidates

February 1st, 2013 by James Goudie KC in Elections and Bylaws

Schedule 4 to the Representation of the People Act 1983, as amended, provides for the definition of the term “election expenses”.  It sets out matters that are to be considered “election expenses”.  It sets out a list of matters excluded from being “election expenses”.  The classification of an expense as an “election expense” has a number of regulatory consequences.  These include that, under Section 76 of the Act, candidates are subject to a limit on the amount that can be spent on “election expenses”.

Pursuant to a power in the Act, there is being made the Representation of the People (Election Expenses Exclusion) Order 2013.  This will amend the Act to exclude grant awards made by the Access to Elected Office Fund (“the Fund”) from the definition of “election expenses”. The Fund has been established by the Government Equalities Office to award financial support to disabled persons who will (or wish to) stand for elected office. In order to give full effect to the Fund policy, the Order amends existing provisions on “electoral expenses” which would otherwise cause difficulties for the proper operation of the Fund. This is because disabled and non-disabled candidates would otherwise not be treated equally as regards the incurring of expenses, in that disabled candidates who received monies from the Fund to remove or mitigate disability barriers would, amongst other things, have to count such expenditure against their election expenses limit. This would have the effect of reducing the amount they could spend on other electoral expenses. Whereas in contrast the non-disabled candidates would incur no such disability related expenses and so would benefit from the advantage of having the entirety of their election expenses limit to spend on other election expenses.

The Order exempts certain expenditure by or on behalf of disabled candidates from being considered “election expenses”. However in order to benefit from the exemption from being an “election expense” the expenditure must be designed to remove or reduce the barriers to seeking elected office faced by disabled candidates; an expense that arises as a consequence of the candidate’s particular disability; defrayed or reimbursed by a grant awarded from the Fund (however, if the expense is greater than amount of the grant provided by the Fund then the exemption only applies in relation to the amount of the expense that is covered by the Fund); in accordance with the terms and conditions of the grant made from the Fund.

The Order therefore provides that only matters of expenditure that a disabled candidate would face, but a non-disabled candidate would not face, are to be exempted from the definition of “election” expenses. Matters of expenditure that would be common to both disabled and non-disabled candidates, such as the normal printing of campaign leaflets for distribution to the public, would not fall within the scope of this exemption or within the scope of the Fund. However where a disabled candidate requires specially adapted transportation in order to participate in door-to-door campaigning on a level basis with a non-disabled candidate, then such an additional expense is likely to fall within the scope of the Fund and providing it satisfies the conditions set out above is likely to fall within the scope of this exemption.

The Order applies to all of the UK. However the Fund only applies to UK Parliamentary elections, local elections in England (except parish council elections), Greater London Authority elections, Mayoral elections in England and Police and Crime Commissioner elections in England and Wales.

The Fund, will distribute £2.3 million in grants from July 2012 to June 2014. The Fund is designed to meet the additional costs that a disabled person may face, such as extra transport costs or sign language interpreters, when seeking to stand for selection by a political party or election.

The Order refers to removing or mitigating “barriers” to elected office associated with a candidate’s disability.  The Electoral Commission has taken issue with this.  They believe that “barriers” is uncertain and will be difficult to interpret.  They are concerned that there is scope for the Fund administrator to make grant allocations for a far wider range of matters than was intended.  However, the Government’s view is that “barriers” means things that merely impede progress or success, as well as things that prohibit progress or success altogether. The term “barriers” is therefore the most appropriate for the Order. The fundamental difference appears to be that the  Commission would prefer the exemption to be defined by an exhaustive list for reasons of certainty. However, the Fund has been set up on the basis that it must be able to fund any potential expense that arises from the mitigation of a barrier to elected office that occurs because of the candidate’s disability. Consequently it is impossible to define the exemption in the terms of an exhaustive list. A non-exhaustive list of expenses it will pay for would equally be unsatisfactory, because it will necessarily not mention everything covered. Therefore in order to provide certainty the Government have sought to define the exemption through descriptive principles that, as required, exactly match the scope of the Fund.

Further, the Order as drafted has the effect of imposing the test that expenses are only exempted provided they are aimed at removing or reducing the impediments disabled candidates face when seeking elected office. There is a further requirement that the impediments must directly result from a candidate’s disability.

Even if the “barriers” test is met, the Order also requires that for any spending to be exempt, it must be in line with the Fund’s terms and conditions. The Commission is not convinced that the terms and conditions are fit for purpose as currently drafted, believing they cannot be relied on to accurately define what is and is not exempt from spending limits. However, the Government does not agree that it is the terms and  conditions that define the exemption, as this is done by the text of the Order. The reference to terms and conditions in the exemption is so as to ensure an individual who fraudulently obtains funding does not benefit from the exemption. In practice the terms and conditions are likely to help provide practical guidance, but it remains the case that the definition of the exemption is the wording set out in the Order.

 

Byelaws

December 14th, 2012 by James Goudie KC in Elections and Bylaws

The Local Government Byelaws (Wales) Act 2012 (anaw 2) reforms procedures for making byelaws in Wales, including removing a requirement for confirmation of byelaws by the Welsh Ministers; enables certain byelaws to be enforced by fixed penalty notices; requires authorities that make byelaws to have regard to any guidance given by the Welsh Ministers on procedure; and restates for Wales a general power to make byelaws.

 

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