The Local Authorities etc (Coronavirus) (Flexibility of Meetings) ( England and Wales) Regulations 2020, S.I. 2020/392 contain 4 Parts. Part 1, Regs 1-3, is General. It and Part 4, Police and Crime Panels, apply to England and Wales. Parts 2 and 3 apply to England only. Part 2 relates to Remote Attendance and consists of Regs 4&5. Part 3 relates to Modification of Meetings and Public Access Requirements. It consists of Regs 6-17. The Regs apply to Meetings that are required to be held, or held, before 7 May next year. Reg 3 relates to Interpretation, including “local authority” and “local authority meeting”.
Remote Attendance, Meetings and Public Access
April 3rd, 2020 by James Goudie KC in Decision making and Contracts
Meetings
April 2nd, 2020 by James Goudie KC in Decision making and ContractsThe Local Authorities etc ( Flexibility of Meetings ) Regulations 2020, S.I. 2020/392, have been made on 1 April 2020, and come into force on 4 April 2020, enabling local authority meetings to be held remotely. They are not identical to the draft Regulations.
Procurement
March 30th, 2020 by James Goudie KC in Decision making and ContractsProcurement Policy Note 01/20 on Responding to COVID-19 has now been followed by Procurement Policy Note on Supplier Relief due to COVID-19.
Double Dutch
March 30th, 2020 by James Goudie KC in Decision making and ContractsCase C- 344/18, ISS FACILITY SERVICES, in which the ECJ gave Judgment on 26 March 2020, concerned public buildings in Ghent, a public contract for cleaning services, and the transfer of that contract to multiple transferred. What happened to the rights and obligations arising from the contracts of employment with the transferor? Did they transfer only to the transferee for whom the worker will perform his or her principal tasks? “ No”, says the ECJ. Or will they transfer to each of the transferred, in proportion to the tasks performed by that worker?
Modification of Public Contracts
March 30th, 2020 by James Goudie KC in Decision making and ContractsThe key questions raised by Joined Cases C-496/18 and C-497/18, HUNGOED, are (1) whether EU law permits reviews of modifications of public contracts to be initiated ex officio by public authorities, and (2) if so, whether such reviews can be initiated after the expiry of time limits in force at the time of the modifications. Advocate-General Bobek answers the 1st question : “ Yes “. EU law neither requires nor prevents ex officio reviews of (a) public contracts or (b) modifications of such contracts: paras 2, 68, 75 and 127. The Advocate-General answers the 2nd question : “ No “. The EU Principle of Legal Certainty bars national public authorities from initiating such reviews once the applicable time limit has already expired : paras 2, 77, 83-87, 94 and 127.
Covid-19 and Procurement
March 19th, 2020 by Peter Oldham QC in Decision making and ContractsThe Cabinet Office has published a note entitled “Procurement Policy Note – Responding to COVID-19”, PPN 01/10. It says
Urgent Contracts
March 19th, 2020 by James Goudie KC in Decision making and ContractsA Procurement Policy Note has been published on 18 March 2020 on responding to COVID -19, and in particular, but not only, using the urgency derogation in PCR Reg 32(2)(c) and other procurement Regs : “designed to deal with this sort of situation”; “not something that was foreseeable”. The Note emphasises that in order to use this exemption the contracting authority must be able to demonstrate genuine reasons for extreme urgency and satisfy other conditions, and keep a written record of the justification and achieve value for money.
Internal Communications
March 12th, 2020 by James Goudie KC in Decision making and ContractsRegulation 12(4)(e) of the Environmental Information Regulations provides that a public authority may refuse to disclose information to the extent that the request involves the disclosure of “internal communications”. Regulation 12(5)(f) provides that a public authority may refuse to disclose information to the extent that its disclosure would “adversely affect the interests of the person who provided that information” in specified circumstances. “Would adversely affect” should be interpreted in the sense that the “adverse effect” has to be identified, and the disclosure “would” have that adverse effect, not “could” or “might”. If the conditions of 12(4)(e) and/or (5)(f) are met, then the information must be disclosed only to the extent that, in all the circumstances, the public interest in maintaining the exception outweighs the public interest in disclosure. These conditions have been considered by the FTT in Middlesborough Council v ICO, EA/2019/0108.
Principle in ex parte James
March 6th, 2020 by James Goudie KC in Decision making and ContractsThe celebrated decision of the House of Lords in R v Tower Hamlets LBC, ex parte Chetnik Developments Limited (1988) AC 858 is justifiably well known for its robust affirmation of the principle that there is no such thing in public law as an unlimited or unrestricted discretion. Linked to this was the endorsement, at pages 874H-877Q, of the principle in Ex parte James (1874) L.R.9 Ch. App. 609 that a public body must act in a “straightforward”, “high-minded”, and “high-principled” way.
The principle in Ex parte James has now been considered by the Court of Appeal in Lehman Brothers Austria Ltd (In Liquidation) v Macnamara (2020) EWCA Civ 321. The threshold test for the invocation of the principle, on an objective basis, is “fairness”, procedural and substantive, rather than unconscionability, on the particular facts of a case; and the principle applies to reliance upon legal rights, including contractual rights: paragraphs 38, 64-69 inclusive, 87-90 inclusive, and 105/106.