Case T-117/17 Proximus v Council of the European Union, concerns the negotiated procedure for a public services framework contract, what constitutes the most economically advantageous tender (“MEAT”), and the lawfulness of a tender evaluation method, in terms of the general principles of transparency, non-discrimination and equal treatment.  The General Court said:- Read more »

Regulation 18 of the Public Contracts Regulations sets out the EU principles of procurement. These include that contracting authorities “shall treat economic operators equally and without discrimination”. Comparable situations must not be treated differently. Different situations must not be treated in the same way, unless such treatment is objectively justified. The question whether or not there has been a breach of the principle is to be considered in context, and having regard

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In R (MP) v SoS for Health and Social Care (2018) EWHC 3392 (Admin) Lewis J said:-

64. … If a public body chooses to consult upon a particular proposal, then it must do fairly and in accordance with well-established principles. If a public body chooses to consult on one set of proposals, but not to consult on another, different set of proposals, then, unless it can be shown that there is a legal obligation to consult upon the second set of proposals, it is not obliged to do so because it is consulting on the first set of proposals. …

65. The fact that the defendant chose to consult upon a very large number of proposals … does not alter the position. The two issues upon which he chose not to consult … were discrete, self-contained issues. The fact that notice of the decision to make those two changes was contained in the document setting out the response to the consultation exercise does not mean that the proposals were part of, or were linked in some way to the proposals that were consulted upon. The defendant did not fail to carry out the consultation exercise properly. The key question, therefore, is whether there was an obligation to consult upon these two changes. Read more »

In R (Jeffries) v SSHD, (2018) EWHC 3239 (Admin) a Divisional Court held that views given by the then Prime Minister in a private meeting with press misconduct victims, about the desirability of completing the anticipated second part of a Public Inquiry into press misconduct, could not give rise to a legitimate expectation that the second part would go ahead.  The meeting had been off the record by agreement, and the Prime Minister could not have thought, or objectively be expected to have thought, that his words could be relied on as creating a legitimate expectation. Read more »

The Upper Tribunal (Fancourt J presiding) has in judicial review proceedings restated the principles for a claimant establishing or a defendant resiling from a legitimate expectation potentially established by published guidance from a public authority, as follows, in R (Vacation Rentals (UK) Ltd v HMRC), (2018) UKUT 383 (TCC):-

(1) The principle that substantive as well as procedural legitimate expectation should be protected is now well established as a ground for judicial review: Read more »

MHCLG is consulting on a proposal for the Secretary of State to make a Localism Order under the Localism Act 2011. This is in order to enable Harrogate BC to use GPOC, subject to Parliamentary approval, to host the race finish line for the 2019 UCI Road World Championships on a specific part of the Harrrogate Stray by, for the specific purpose of the Championships, temporarily lifting restrictions in the Harrogate Stray Act 1985. That is a private Act of Parliament. It makes provision for the management by the Council of the Stray. It restricts the Council’s flexibility to act, notwithstanding the significant social and economic benefits to the region that are expected from the event. The Order would follow two previous similar Orders.

A development agreement is entered into by a local authority land owner with a private contractor (St Modwen). There has been a competitive process. That complies with the Council’s duty to obtain “best consideration” on a land disposal, pursuant to its duty under Section 123 of the Local Government Act 1972 (and its “best value” duty). A challenge to its compliance with the Section 123 duty fails, at first instance, and is not pursued on appeal. However, there had been no procurement process, as would be required, not for a land transaction, or transaction whose “main object” was a land transaction, but for a public works contract. A challenge in this respect also failed at first instance, but has been pursued on appeal.

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What is a contract for pecuniary interest? What is a public contract?  What therefore is the scope of the public procurement regime? Do the Teckal or Hamburg Waste derogations apply? These were the questions before the ECJ in Case C-606/17 IBA Molecular Italy Sri v Aziende ULSS No. 3.

“Public contracts” for the purpose of that regime are of course contracts “for pecuniary interest” concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.   “Contracting authorities” means the State, regional or local authorities, “bodies governed by public law”, associations formed by one or several of such authorities or one or several of such bodies governed by public law. Read more »

When does involvement at an earlier stage give rise to an appearance of bias? That was the issue in Stubbs v The Queen [2018] UKPC 30.

Two sub-issues were whether it was material that the previously involved individual would now be part of a panel; and whether any apprehension of bias was assuaged by the passage of time. Neither factor was accepted as being a sufficient justification for non-recusal. Read more »

In R (Help Refugees Ltd) v SSHD (2018) EWCA Civ 2098 the Court of Appeal has restated propositions in relation to the scope of a duty to consult, as follows:-

(1)       Irrespective of how the duty to consult has been generated, the common law duty of procedural fairness will inform the manner in which the consultation should be conducted;

(2)       The public body doing the consulting must put a consultee into a position properly to consider and respond to the consultation request, without which the consultation process would be defeated. Consultees must be told enough – and in sufficiently clear terms – to enable them to make an intelligent response. Therefore, a consultation will be unfair and unlawful if the proposer fails to give sufficient reasons for a proposal, or where the consultation paper is materially misleading, or so confused that it does not reasonably allow a proper and effective response.

(3)       The content of the duty – what the duty requires of the consultation – is fact-specific and can vary greatly from one context to another, depending on the particular provision in question, including its context and purpose. The requirements being linked particularly to the purpose of the consultation.

(4)       A consultation may be unlawful if it fails to achieve the purpose for which the duty to consult was imposed.

(5)       The Courts will not lightly find that a consultation process is unfair. Unless there is a specification as to the matters that are to be consulted upon, it is for the public body charged with performing the consultation to determine how it is to be carried out, including the manner and extent of the consultation, subject only to review by the Court on conventional judicial review grounds. Therefore, for a consultation to be found to be unlawful, “clear unfairness must be shown”.

(6)       The product of the consultation must be conscientiously taken into account before finalising any decision.
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