Transfers of Governance

August 1st, 2019 by James Goudie QC in Local Authority Powers

The Home Secretary decided to approve proposals to transfer the governance of Fire and Rescue Services (“FRSs”) to the Police and Crime Commissioner (“PCC”) for the area. A challenge failed before Garnham J in R (Shropshire & Wrekin Fire Authority, Hereford and Worcester Fire Authority, and Cambridgeshire and Peterborough Authority) v SSHD (2019) EWHC 1967 (Admin).  The question of substance was whether the proposals were “in the interests of economy, efficiency and effectiveness” (“the 3Es”) within Section 4A(5) of the Fire and Rescue Services Act 2004 (“the 2004 Act”) as inserted by the Policing and Crime Act 2017.

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Obtaining Injunction

June 20th, 2019 by James Goudie QC in Local Authority Powers

Birmingham City Council v Afsar and Others (2019) EWHC 1560 (QB) is a case  about a protest which has been carried on outside a primary school. Warby J granted interim injunctions, on the basis that the Council was likely to succeed at trial in showing that restraint on the way that protests were being conducted was justified.

The protest involved parents of pupils at the school, relatives of theirs, and other individuals opposed to some of the ways the school is teaching its pupils. It had been going on for a number of weeks. The focus of the protest has been the teaching of matters relating to sexual behaviour, sexuality, and gender.

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Community Governance Review

April 23rd, 2019 by James Goudie QC in Local Authority Powers

R (Britwell Parish Council) v Slough Borough Council (2019) EWHC 998 (Admin) is two claims for judicial review by two parish councils challenging the Slough Borough Council (Reorganisation of Community Governance) Order 2019 (“the Order”). That Order provides for the abolition of the parishes of Britwell, and Wexham Court and the winding up and dissolution of each of the two parish councils for those areas. In essence, the two claimants, Britwell Parish Council and Wexham Court Parish Council, contend that the defendant, Slough Borough Council, which made the Order failed to have regard to relevant guidance. That required that there must, amongst other things, be clear and sustained local support for abolition of a parish council. The claimants contend that all the material before the defendant, including the consultation responses, responses from the parish councils and the results of local polls, showed that the majority of electors in the two parishes wished to retain, not abolish, the parish council. In those circumstances they contend that there was not clear and sustained local support for the abolition of the parish councils as required by the Guidance. They further contend that the defendant failed to have regard to the claimants’ role as representative democratically elected bodies and that the decision was irrational. Read more »


Restricting exit payments

April 11th, 2019 by James Goudie QC in Local Authority Powers

On 10 April 2019 HM Treasury has issued a Consultation, for response by 3 July 2019, on draft “Restriction of Public Sector Exit Payments Regulations”, pursuant to the Small Business Enterprise and Employment Act 2015, as amended by the Enterprise Act 2016.


Adult Education

February 11th, 2019 by James Goudie QC in Local Authority Powers

From August 2019, some functions which relate to adult education, and the associated adult education budget, will be devolved to 6 Mayoral Combined Authorities (“MCAs”), and delegated to the Mayor of London (“MoL”). The Secretary of State for Education (“the SoS”) has entered into a Memorandum of Understanding (“MoU”) with the MCAs, and a separate MoU with the MoL.  Both MoUs relate to functions set out in the Apprenticeships, Skills, Children and Learning Act 2009 (“ASCAL 2009”), and exercised through the Education and Skills Funding Agency (“the ESFA”). In the case of the MoL the (revocable) delegated functions are exercisable by him only and are not capable of further delegation. The functions are to be carried out in accordance with the Greater London Authority Act 1999.

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Ultra Vires

January 23rd, 2019 by James Goudie QC in Local Authority Powers

Local Authorities in Bermuda, such as the capital, Hamilton, do not have a General Power of Competence.  Nonetheless the decision of the Privy Council on 21 January 2019 in Mexico Infrastructure Finance LLC v The Corporation of Hamilton (2019) UKPC 2 is of general interest.  The Privy Council ruled 3-2 that the Corporation had acted beyond its powers, because “municipal” is a word of limitation and the Corporation was not acting for a “municipal purpose”. Read more »


Public Authorities and Trading

January 17th, 2019 by James Goudie QC in Local Authority Powers

In Apt Training and Consultancy Limited v Birmingham & Solihull Mental Health NHS Trust (2019) EWHC 19 (IPEC) the Judge found that the NHS Trust’s use of the Claimant’s sign in relation to educational and training services and related material was use for the purposes of trade mark infringement, and that such use was use “in the course of trade”.

The NHS Trust denied infringement on the basis that it had not used the sign “in the course of trade”, because it was a non-profit making entity, whose primary function was the provision of services to the NHS, rather than commercial activities with a view to economic advantage. This defence failed. The Judge held that, in assessing whether a sign was used “in the course of trade”, the fact that goods or services were offered on a non-profit making basis was not decisive. A non-profit making body could make external, commercial use of a sign in various ways.


Structural and Boundary Changes

December 7th, 2018 by James Goudie QC in Local Authority Powers

The Local Government (Structural and Boundary Changes) (Amendment) Regulations 2018, S.I. 2018/1296, will come into force on 2 January 2019. The Local Government and Public Involvement in Health Act 2007 Part 1 provides for structural and boundary changes in relation to local government areas in England.  These Regulations, made under Section 14 of the 2007 Act, make incidental, consequential, transitional and supplementary provision of general application in relation to the exercise of certain functions for the purposes of, and in consequence of, Orders made by the Secretary of State under Sections 7 and 10 of the 2007 Act.  Part 1 of these Regulations amends Regulations previously made under Section 14 of the 2007 Act.  Part 2 of the Regulations makes provision to specify the dates on which the collection funds and general funds of councils established under a Section 10 Order must be established in accordance with the provisions of the Local Government Finance Act 1988, and modifies relevant provisions of the Local Government Finance Act 1992 to allow those councils, in setting their council tax, to take account of precepts which may be issued by charter trustees which may be established under a Section 10 Order.


Pension Increases

November 30th, 2018 by James Goudie QC in Local Authority Powers

The Superannuation Act 1972 confers a general power to establish public sector pension schemes, and make their rules.  However, indexation increases are governed by the Social Security Pensions Act 1975: so held by a Divisional Court in R (BT) v HMT (2018) EWHC 3251 (Admin) at paragraph 156.


Suspension of Employee

November 30th, 2018 by James Goudie QC in Local Authority Powers

In Ardron v Sussex Partnership NHS Foundation Trust (2018) EWHC 3157 (QB) the NHS Trust was proceeding with a disciplinary hearing, alleging gross misconduct, by way of gross negligence.  The Claimant sought an injunction to prevent the hearing.  Jacobs J dismissed the claim.  His holdings included (paragraphs 116-118) that the Trust had a prima facie case that the Claimant’s conduct amounted to a breach of its relationship of trust and confidence with her.  He held that the absence of a sustainable case on breach of trust and confidence was not demonstrated by the fact that the employee was not suspended and continued to work, when specific monitoring measures had been put in place, the allegations against her had not yet been proved, and the outcome of the disciplinary process was not being prejudged.