Public Procurement

December 29th, 2020 by James Goudie QC 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.

 

Consultation

December 3rd, 2020 by James Goudie QC in Decision making and Contracts

In R ( MP ) v SoS for Health and Social Care (2020) EWCA Civ 1634, dismissing an appeal from Lewis J, as he then was, the Court of Appeal observed :-

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Consultation

November 24th, 2020 by James Goudie QC in Decision making and Contracts

In R ( Article 39 ) v SoS for Education (2020) EWCA Civ 1577 the Court of Appeal holds that the omission by the SoS to include in consultation bodies representing children in care, before making coronavirus amendments to SIs governing the children’s social care system, was unlawful. The Court sets out the general principles relating to consultation at paragraphs 26-37 inclusive, and its discussion and conclusions from paragraph 75.

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Consultation

August 11th, 2020 by James Goudie QC in Decision making and Contracts

In R ( Article 39 ) v SoS for Education (2020) EWHC 2184 ( Admin) Lieven J held that the Adoption and Children ( Coronavirus ) Regulations 2020, relaxing regulatory safeguards for looked after children, were lawful, notwithstanding that the Children’s Commissioner had not been consulted. This was for two interrelated reasons : (1) extreme urgency in a crisis; (2) the interests of children being taken into consideration through consultation with providers of care to the children : paras 81/82.

 

Legitimate Expectation

August 10th, 2020 by James Goudie QC in Decision making and Contracts

A promise or representation sufficient to give rise to a substantive legitimate expectation will generally be a “ specific undertaking directed at a particular individual or group “, rather than to a large or diverse group. So held by a Divisional Court in R ( Asbestos Victims) v Lord Chancellor (2020) EWHC 2108 ( Admin) at paras 55-61.

 

Systemic Unfairness

July 24th, 2020 by James Goudie QC in Decision making and Contracts

As an aspect of the rule of law, it is for the Court to assess what fairness requires. That is to be determined in the particular case-specific context. So too the Court will determine in that context whether the procedure adopted meets those requirements. This is the case both when an individual decision is challenged and when a challenge is advanced on the ground that the arrangements themselves are systemically or inherently unfair.

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Combined Authority

July 20th, 2020 by James Goudie QC in Decision making and Contracts

The draft Barnsley, Doncaster, Rotherham and Sheffield Combined Authority ( Functions and Amendment) Order proposes  (1) for certain functions to be exercised by the Combined Authority and its Mayor and (2) changes to governance and constitutional arrangements. The functions to be exercised by the Combined Authority relate to transport, education, skills and training, and housing and regeneration.

The proposed governance and constitutional arrangements deal with issues such as the appointment of political advisers, the establishment of an independent remuneration panel, and the ability of the Mayor to cast a deciding vote. The Order also proposes initial measures to create a Mayoral Development Corporation in the Combined Authority’s area.

 

General Power of Competence

July 10th, 2020 by James Goudie QC in Decision making and Contracts

In R (JP) v Croydon CCH & Croydon LBC (2020) EWHC 1470 (Admin) the claimant advanced what Mostyn J, at para 46, described as “an adventurous argument” that GPOC, under Section 1 of the Localism Act 2011 (LA 2011), empowered the local authority (LA) to provide medical care, notwithstanding that this was clearly within the remit of the NHS/CCG. In rejecting this argument found that there was a limitation pre the commencement of LA 2011. The limitation under Section 2(2)(a) expressly applied, by virtue of Section 75 of the National Health Service Act 2006 (NHSA 2006) and the NHS Bodies & LAs Partnership Arrangements Regulations 2000, which clearly delineated the boundaries between the NHS and Las as to what could be provided by whom. GPOC could not be used to usurp decisions reposed in the NHS and NHS bodies. LA 2011 should not, para 48 be construed as “driving a coach and horses through very carefully delineated frontiers of competence and function”.

Section 10(1) of the Children Act 2004 and Section 82 of NHSA 2006 promoted CCG/LA co-operation, but, para 51, these are “macro or target duties” and it is “extremely doubtful” whether they confer a justiciable right on individuals.

 

Bias

July 9th, 2020 by James Goudie QC in Decision making and Contracts

Apparent bias exists where, in context, the hypothetical “ fair-minded” and “ informed” observer, having considered the facts, would conclude that there was a “real possibility” that the tribunal was biased, for example by pre-judgment. In R (Roberts) v Leicester Crown Court (2020) EWHC 1783 ( Admin) it is held, para 48, that does not rule out “ probing the issues from the outset”. On the contrary : “ Early identification of the real issue in a case is very helpful to any tribunal”. Moreover, para 52, it is often helpful to indicate when a particular issue is troubling the tribunal.

However, para 53, the tribunal’s insistence that it has kept an open mind is not itself of much weight.

 

Supply Contracts

June 10th, 2020 by James Goudie QC in Decision making and Contracts

Procurement Policy Action Note 04/20 “ Recovery and Transition from Covid-19” sets out guidance on payment by public bodies to their suppliers to ensure service continuity during the coronavirus outbreak. It builds on PPN 02/20.