Can a reorganisation/ mergers, involving the transfer of functions between public authorities, constitute a TUPE transfer? No : says the EAT in the NHS case of BICKNELL. This followed the EAT’s decision in NICHOLLS v CROYDON LBC (2019) ICR 542. The purchasing or commissioning of goods or services not on the market is held not in itself to be capable of constituting an “ economic activity “ within the TUPE definition of a “ business transfer”. If the Croydon Council case is wrong, it requires the Court of Appeal to correct that.
FIOA Exemptions
November 24th, 2023 by James Goudie KC in GeneralIn DEPARTMENT FOR BUSINESS AND TRADE v INFORMATION COMMISSIONER and MONTAGUE (2023) EWCA Civ 1378 the Court of Appeal has ruled that the public interest recognised in two or more different provisions in the Freedom of Information Act 2000 (FOIA) exempting information from disclosure should be assessed in combination when determining whether that public interest outweighed the public interest in disclosure. In other words, the Court approved of aggregation. It rejected the contention that the public interest recognises in each exemption provision should be weighed separately against the public interest in disclosure. Read more »
Arbitration
November 23rd, 2023 by James Goudie KC in GeneralAn Arbitration Bill was introduced ( in the House of Lords ) on 21 November 2023. The Bill when enacted aims to give effect to Recommendations by the Law Commission to amend the Arbitration Act 1996 ( the 1996 Act ). The main provisions of the Bill are : (1) a new rule on the governing law of an Arbitration Agreement : Clause 1; (2) codification of an Arbitrator’s Duty of Disclosure; Clause 2; (3) strengthening of Arbitrator immunity around resignation and applications for removal : Clauses 3 & 4; (4) introduction of a power for Arbitrators to dispose summarily of issues which have no real prospect of success : Clause 7; (5) clarification of Court powers in support of emergency Arbitrators : Clause 8; (6) clarification of Court powers in respect of arbitral proceedings : Clause 9; and (7) a revised framework for jurisdiction challenges under Section 67 of the 1996 Act : Clauses 10 & 11;
New Acts
October 27th, 2023 by James Goudie KC in GeneralThe following Bills received Royal Assent and were enacted on 26 October 2023
- Online Safety Act, on which see the 11 KBW Panopticon Blog
- Worker Protection ( Amendment of Equality Act 2010 ) Act
- Energy Act
- Non-Domestic Rating Act, which makes a number of technical alterations
- Procurement Act, which will replace existing Regulations
- Levelling-up and Regeneration Act , including provisions in relation to devolution and planning environmental and housing related reforms
- Economic Crime and Corporate Transparency Act
Local Government Reorganisation
March 4th, 2022 by James Goudie KC in GeneralIn R (Cumbria County Council) v SoS (2022) EWHC 388 (Admin) Fordham J. refused to the County Council’s renewed application on a number of grounds for permission to bring Judicial Review proceedings against a decision of the SoS, following Statutory Guidance and consultation, to split the County into 2 unitary authorities. There was no reasonable arguability with a realistic prospect of success. The Statutory Guidance was not an unlawful departure from Government policy in relation to “minimum population size”. Nor had the SoS acted unlawfully with respect to the possibility of a Mayoral Combined Authority, the strengths and weaknesses of an East/West proposal and a single unitary proposal, or consistency with his North Yorkshire decision.
Houses in Multiple Occupation: December 2021
December 9th, 2021 by James Goudie KC in General, HousingIn Palmview Estates v Thurrock Council (2021) EWCA Civ 1871 the Court of Appeal consider the “reasonable excuse” defence in Section 75 (2) of the Housing Act 2004. There is a defence if, viewed objectively, there is reasonable excuse for having control of or managing a HMO without a licence. The reasonable excuse must relate to the activity of controlling or managing the HMO without a licence.
Can remote licensing hearings continue?
April 29th, 2021 by philipkolvin in GeneralArticle written by Philip Kolvin QC for Local Government Lawyer.
Philip Kolvin QC asks whether the High Court’s decision that remote local authority meetings cannot continue without new legislation applies to licensing committee hearings.