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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In R (Save Britain’s Heritage) v SoS for CLG and Westminster City Council (2018) EWCA Civ 2137 the Court of Appeal considered whether there was a legitimate expectation that reasons would be given, based on a promise. The Court reaffirmed (paragraph 39) that in such a case the position is that, if a public body indicates a clear and unequivocal policy that will be followed and applied in a particular type of case, then an individual is entitled to expect that policy to be operated, unless and until a reasonable decision is taken that the policy be modified or withdrawn, or implementation interferes with that body’s other statutory duties. Read more »

In Ocean Outdoor UK Ltd v Hammersmith and Fulham LBC (2018) EWHC 2508 (TCC) the Claimant challenged the decision by the defendant (“the Council”), to enter into arrangements with Outdoor Plus Limited (“Outdoor Plus”) for the leasing of two plots of land and operation of two metal towers, with media screens and supportive software, one on each plot, in West London (“the Two Towers”) following a tender exercise.

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In Nicholls v Croydon LBC and Hacker v Croydon LBC, UKEAT/0033 and 0004/18/RN, the employment of the Claimants (BMA Appellants and Unite Appellants) transferred on 1 April 2013 from the Croydon Primary Care Trust (“the Trust”) to the London Borough of Croydon (“the Council”).  In connection with the transfer, the Secretary of State made the Health and Social Care Act 2012 (Croydon Primary Care Trust) Staff Transfer Scheme 2013 (“the Staff Transfer Scheme”).  He did so in exercise of the powers conferred by Section 300 of the Health and Social Care Act 2012.  Read more »

In R ( Langton ) v SoS for DEFRA ( 2018 ) EWHC 2190 ( Admin ) Sir Ross Cranston restated principles in relation to consultation as follows.

Para 104 : there is a “ high threshold” of being “ clearly and radically wrong “ so as to render a consultation procedurally unfair and thus unlawful.

 Para 105 : a consultation has to be considered in its statutory context.

 Para 106 : once a consultation is launched it must be carried out fairly, but the statutory context is relevant when considering the performance of the consultation duty, the specific matters on which to consult, and the basis upon which the consultation should proceed.

 Para 109 : only in exceptional cases and special circumstances is reference required to “ discarded alternatives”.

 Para 115: as to how consultation responses are addressed, for unlawfulness the claimant must establish that a matter was such that no reasonable decision maker would have failed in the circumstances to take into account as a relevant consideration. Read more »

In R ( KE ) v Bristol City Council ( 2018 ) EWHC 2103 ( Admin ) the Court quashed the Council’s High Needs Block budget allocation, which reduced expenditure on Special Educational Needs. The Judge found that there had been a duty to consult by reason of the duty of inquiry under the PSED, Section 27 of the Children and Families Act 2014, and common law. He also found that there was a breach of Section 11 of the Children Act 2004.

In R ( Brooke Energy Ltd ) v SOS for BEIS (2018) EWHC 2012 ( Admin ) a Divisional Court has restated the principles as to when there is a non-statutory duty to consult. The circumstances in which the common law will impose a duty on a public authority to consult by virtue of the doctrine of legitimate expectation are threefold. First, where there has been a promise to consult. Second, where there is an established practice of consultation. The alleged practice or promise must be clear, unequivocal and unconditional. A practice must be sufficiently settled and uniform to give rise to an expectation that the claimant would be consulted. Moreover, there must be unfairness amounting to an abuse of power for the public authority not to be held to the practice.

Third, a duty to consult will be imposed where a failure to consult would lead to conspicuous unfairness. However, the duty will arise on this basis only in exceptional situations.

In James-Bowen v Commissioner of Police of the Metropolis (2018) UKSC 40 the Supreme Court addressed the implied duty of trust and confidence in employment contracts.  They said:-

“16.    The mutual obligation of employer and employee not, without reasonable and proper cause, to engage in conduct likely to destroy or seriously damage the relationship of trust and confidence required between employer and employee is a standardised term implied by law into all contracts of employment rather than a term implied from the particular provisions of a particular employment contract (Malik v Bank of Credit and Commerce International SA [1998] AC 20, per Lord Steyn at p 45D). It was described by Lord Nicholls in Malik at p 35A, as a portmanteau concept. In that case the House of Lords considered it the source of a more specific implied obligation on the part of the employer bank not to conduct its business in a dishonest and corrupt manner, the breach of which gave rise to a cause of action for damage to the economic and reputational interests of its employees. Similarly, in Eastwood v Magnox Electric plc [2004] UKHL 35; [2005] 1 AC 503 the House of Lords recognised an obligation on an employer, in the conduct of his business and in the treatment of his employees, to act responsibly and in good faith (per Lord Nicholls at para 11). The implied term has been held to give rise to an obligation on the part of an employer to act fairly when taking positive action directed at the very continuance of the employment relationship (Gogay v Hertfordshire County Council [2000] IRLR 703; McCabe v Cornwall County Council [2004] UKHL 35; [2005] 1 AC 503; Bristol City Council v Deadman [2007] EWCA Civ 822; [2007] IRLR 888; Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512; [2015] IRLR 112; Stevens v University of Birmingham [2015] EWHC 2300 (QB); [2016] 4 All ER 258). Furthermore, any decision-making function entrusted to an employer must be exercised in accordance with the implied obligation of trust and confidence (Braganza v BP Shipping Ltd [2015] UKSC 17; [2015] 1 WLR 1661).” Read more »