State Aid

December 29th, 2020 by James Goudie KC in Capital Finance and Companies

The UK will continue to have after 1 January 2021 a subsidy control system that will be legally enforceable. The subsidy provisions in the 1246 pages Brexit deal are however weaker than the EU’s initial proposals. These had been for the UK to align with EU state aid law. They are nonetheless stronger than the provisions of the EU’s free trade agreements with Canada and Japan. Indeed, many of the definitions and principles in the Brexit deal are similar to the EU State Aid system. There are features that the UK’s subsidy control system must include.

The Brexit deal sets out a definition of a subsidy, basically selective advantage, a list of common principles, and exemptions from prohibitions. The deal also addresses enforcement. There will have to be a Court or Tribunal for subsidy cases, and specified common remedies for breach, including recovery of a payment.

 

The BREXIT Deal and the Environment

December 29th, 2020 by James Goudie KC in Environment, Highways and Leisure

Commitments on the environment in the 1246 page Brexit deal go beyond other EU trade agreements. The deal sets out some specific mutual commitments. These include maintaining the planned reduction of greenhouse gases and a system of carbon pricing. The commitment extends to not lowering the overall level of environmental protection in a way that impacts trade or investment. The deal also outlines common principles, such as the polluter pays, and provides for enforcement measures.

 

Public Procurement

December 29th, 2020 by James Goudie KC in Decision making and Contracts

The 1246 pages Brexit deal has some procurement rules. The UK’s initial offer was to reaffirm its existing commitments in the WTO’s Government Procurement Agreement. The eventual trade deal builds on the GPA rules and extends the coverage of sectors beyond the GPA, including education. The deal sets out basic rules on competitive tendering that are simpler and less prescriptive than EU Directives, and includes a requirement for there to be an impartial authority to assess challenges to contract awards.

 

Unjust Enrichment

December 24th, 2020 by James Goudie KC in Judicial Control, Liability and Litigation

Surrey County Council v NHS Lincolnshire CGC (2020) EWHC 3550 (QB) concerns a restitution claim by a local authority against an NHS body in the context of healthcare and community care services. Issues include whether the claim is a public law claim that should be brought by judicial review or can be brought as a private law claim( paras 72-84), limitation ( paras 85-91), a novel category of unjust enrichment ( paras 92-121), and change of position defence ( paras 122-129).

 

PSED

December 24th, 2020 by James Goudie KC in Human Rights and Public Sector Equality Duty

The PSED applies to all aspects of a local authority’s housing function. This includes decisions to commence, pursue and enforce possession proceedings. However, it is held in Taylor v Slough BC (2020) EWHC 3520 (Ch) at paras 24-26, 29-30 and 33-43, that a breach of the PSED at an early stage of individual possession proceedings is capable of being cured by subsequent full compliance.

 

Land Subject to Trust

December 23rd, 2020 by James Goudie KC in Land, Goods and Services

Local authority open space land is held for the purposes of public recreation, public access and public enjoyment pursuant to the Public Health Act 1875 and the Open Spaces Act 1906. The land is held subject to a statutory trust for those purposes. It is not however a trust in the usual private law sense. The land and the trust are inseparable.

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Bilingual Legislation

December 23rd, 2020 by James Goudie KC in Local Authority Powers

Welsh language legislation is considered in R ( Driver) v Rhondda Cynon Taff CBC (2020) ECCA Civ 1759, at paragraphs 11/12. The best approach to the interpretation where different language texts have different meanings, and where it is not possible to reach an interpretation consistent with the literal meaning of both language versions, is to discern the legislative intention by reference to the purposes or objects of the legislation as they appear from the texts, rather than by searching for a shared meaning. The Court should apply normal principles of statutory interpretation to its analysis of the meaning of both texts equally.

 

ECHR Article 14

December 23rd, 2020 by James Goudie KC in Human Rights and Public Sector Equality Duty

Severe disability is a “ status” for Article 14 purposes. They can be compared to disabled people for discrimination purposes. So held in R (SH) v Norfolk County Council (2020) EWHC 3436 ( Admin).

 

ETOs

December 15th, 2020 by James Goudie KC in Environment, Highways and Leisure

The validity of a temporary Experimental Traffic Order, restricting access through a London street to zero omission vehicles, was upheld Tomkins v City of London (2020) EWHC 3357 (Admin). It was found that there had been no duty to carry out a non-statutory consultation. There was no legitimate expectation to that effect. However, declarations were granted in relation to failings to comply with procedural requirements and statutory requirements in relation to statement of reasons.

 

Misconduct

December 4th, 2020 by James Goudie KC in Standards

A 118 page Law Commission Report, No. 397, with 22 Recommendations, recommends substantive and procedural reform of the common law offence of misconduct in public office, which operates in parallel with the tort of misfeasance in public office. The Report proposes two replacement offences, not to be applicable to the provision of education and health services. They are “ corruption in public office”, with a test of what a reasonable person will think is “ seriously improper”; and “ breach of duty in public office”, to prevent death or serious injury. The Report also recommends a statutory list, to be capable of amendment by SI, of positions that constitute “ public office”, to which a functional test would be applied.

 

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