Fees

December 12th, 2019 by James Goudie QC in Local Authority Powers

The fixing by local authorities of fees for taxis and minicabs has been considered by the Court of Appeal in R (Rehman) v Wakefield Council and LGA (2019) EWCA Civ 2166.  The charging power is Section 70 of the Local Government (Miscellaneous Provisions) Act 1976 (“the 1976 Act”). The Council’s case was not accepted that the costs of enforcing drivers’ conduct fell within Section 70 of the Act.  The Court of Appeal said that it was clear from the wording of Section 70 in the context of the Act that the cost of monitoring and enforcing driver conduct could not be taken into account in fixing the vehicle licence fee.  Part II of the Act provided for distinct and detailed regimes for (a) vehicle licences for taxis and private hire vehicles; (b) drivers’ licences; and (c) operators’ licences.  Each type of licence was governed by a comprehensive and self-contained statutory regime which addressed grant, terms, suspension, revocation and fee. There was no cross-referencing in relation to any of those matters. Thus, the notion that the fee for one type of licence could reflect the costs involved in another was entirely contrary to the structure of the Act. The “control and supervision” referred to in Section 70 was control and supervision by the local authority, not the driver.  It would be a strained and artificial interpretation of those words to claim that the local authority controlled the vehicle by monitoring and enforcing the driver’s behaviour. Moreover, the words in Section 70 could not have been intended by Parliament to authorise something entirely alien to the structure of Part II of the Act in view of its comprehensive self-contained regime for each category of licence. Nor could the proper interpretation of the legislation governing a licensing regime be affected by resource considerations.

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Those in the Locality

August 22nd, 2019 by James Goudie QC in Local Authority Powers

DULGHERIU v EALING LBC (2019) EWCA Civ 1490 concerned the validity of a Public Spaces Protection Order ( “ PSPO “ ) made by the Council under Section 59 of the Anti-Social Behaviour Crime and Policing Act 2014 prohibiting anti-abortion protests in the immediate vicinity of a family planning centre. The PSPO was upheld.

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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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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.