Local Authority Powers

September 18th, 2015 by James Goudie QC in Local Authority Powers

Part 8 (Clause 26 and Schedule 4) of the Enterprise Bill, introduced in the House of Lords on 17 September 2015, contains elaborate provisions giving the Treasury power to impose restrictions on public sector exit payments, as broadly defined. They will be capped.

 

Fees for Licence

April 29th, 2015 by James Goudie QC in Local Authority Powers

The Supreme Court, in R (Hemming) v Westminster City Council [2015] UKSC 25, has allowed in part an appeal by Westminster City Council (“Westminster”) from [2013] EWCA Civ 591, but on a critical question has made a reference to the CJEU.

The Supreme Court had the benefit of interventions by HM Treasury and a considerable number of regulatory or professional bodies, concerned about their ability to recover fees for enforcing other regulatory schemes, which might be regarded as similar to that presently under consideration

In order to trade, sex shops in Westminster’s area need a licence from Westminster under Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, paragraph 19 of which provides that an applicant for the “grant, renewal or transfer of a licence … shall pay a reasonable fee determined by the appropriate authority”.
 
EU law has placed limits upon the licence fees which can be charged.  Article 13(2) of Directive 2006/123/EC,  given domestic effect by Regulation 18(4) of the Provision of Services Regulation 2009 SI No 2999, provides that the “authorisation procedures and formalities” for applicants “shall not be dissuasive … and any charges which the applicants may incur from their application shall be reasonable and proportionate to the cost of the authorisation procedures in question and shall not exceed the cost of the procedures”.

Mr Hemming runs sex shops in the Westminster area under the name Simply Pleasure Ltd. Westminster has over past years required applicants for sex shop licences to pay with their applications a substantial sum (£29,435 in 2011/12), broken down into a smaller amount (£2,667 in 2011/12) relating to the processing of the application and a larger amount (£26,435 in 2011/2012) relating to the cost of administering and enforcing the licensing regime as a whole. The larger amount was refundable whenever an application failed.

Mr Hemming claims that this system is illegitimate under both domestic and EU law. His primary case is that there is no basis for requiring successful or unsuccessful applicants to meet the costs of administering and enforcing the regime. He has also developed a secondary case, that there is no basis for requiring such costs to be paid with the applications, even on a refundable basis. The Courts below agreed with Mr Hemming’s primary case, holding that such costs had to be funded by an authority such as Westminster out of its general funds.

The Supreme Court has now concluded that:-

(1) Paragraph 19 of schedule 3 to the 1982 Act enables a licencing authority to impose on an applicant a fee for the grant or renewal of a licence which covers the running and enforcement costs of the licensing scheme, to be payable either (a) at the time when the licence is granting; or (b) on a refundable basis, at the time when the application is lodged;

(2) Article 13(2) of the Directive deals only with authorisation procedures and fees relating to applications for permission to access or exercise a service activity, such as operating a sex shop:  it does not prevent the imposition on those who receive licences of proportionate charges to fund the cost of administering and enforcing the licensing regime;

(3) As to the legitimacy of Westminster’s system, it is helpful to distinguish between two types of scheme: under Type A, applications for licences are made on terms that the applicant must, upon their application being granted, pay a fee to cover the cost of administering and enforcing the licensing regime; under Type B, which represents the scheme actually adopted by Westminster, applications for licences are made on terms that the applicant must, at the time of making the application, pay a fee, refundable in the event that the application fails, to cover the cost of administering and enforcing the licensing regime;
 
(4) Type A schemes are permissible under Regulation 18(4) of the Regulations and  Article 13(2) of the Directive, because they permit a licensing authority to charge a successful applicant with a proportionate part of the cost of administering and enforcing the licensing regime as a whole;

(5) Whether Article 13(2) also permits Type B schemes is more problematic, because payment is required to be made by every applicant, albeit on a potentially refundable basis, at the time when the application is made: there was no evidence that a Type B scheme could or would have a potentially dissuasive effect upon applicants, but it remains unclear whether it involves in law a “charge” incurred from the application, contrary to Article 13(2);  and

(6) A reference to the OJEU is therefore required on whether and when a Type B scheme is consistent with Article 13(2).

As the Supreme Court observed, at paragraph 20:-

“Under a scheme of Type B, every applicant is required to pay up front – even though on a refundable basis – a sum which is referable not to the costs of handling the application, but to costs which will be incurred for the benefit only of successful applicants. This is a requirement which attaches to the application, not to its success. The question is whether it infringes Article 13(2).”

The Supreme Court further observed, at paragraph 23:-

“The question is … whether the requirement to make a payment refundable on failure of an application is a “charge”. When the application succeeds, the payment becomes due unconditionally. When the application fails, the payment is refundable and refunded. But is it a charge to have to advance the payment, in order to await one or other of these occurrences?”

The questions arising were whether:-

(1)  The requirement to pay a fee including the second refundable part means, as a matter of law and without more, that the Respondents incurred a charge from their applications which was contrary to Article 13(2) in so far as it exceeded any cost to Westminster of processing the application; or

(2)  A conclusion that such a requirement should be regarded as involving a charge – or, if it is so to be regarded, a charge exceeding the cost to Westminster of processing the application – depends on the effect of further (and if so what) circumstances, for example: (a) any evidence establishing that the payment of the second refundable part involved or would be likely to involve an applicant in some cost or loss, (b) any saving in the costs to Westminster of processing applications (and so in their non-refundable cost) that would result from requiring an up-front fee consisting of both parts to be paid by all applicants.

No authority addressing these questions was cited to the Supreme Court.  The answers to them are unclear. Accordingly, it was necessary for the Supreme Court to make a reference to the CJEU.

 

Bringing Proceedings

June 19th, 2014 by James Goudie QC in Local Authority Powers

As is well known, Section 222(1) of the Local Government Act 1972 authorises a local authority to prosecute (or defend or appear in) “any” legal proceedings, where they consider it “expedient for the promotion or protection of the inhabitants of their area”.  In Oldham MBC v Worldwide Marketing Solutions Ltd [2014] EWHC 1910 (QB) the High Court held that the authority had been fully entitled to conclude that proceedings, against a trader who had given but then breached an undertaking not to use misleading advertising in selling to other traders, was expedient in the interests of the inhabitants of their area, notwithstanding that the trader had subsequently left that area.  Phillips J said:-

24.       There were both broad policy reasons and specific aspects of this case which, individually, and certainly if considered cumulatively, justified such a conclusion.

25.        First, the inhabitants of an area have a clear and obvious interest in the local authority taking reasonable steps to procure that undertakings it has extracted from traders (such as that given by the defendants in this case) are enforced through proceedings where breached. If such steps are not taken, and undertakings are seen to be breached with impunity, the force and utility of such undertakings will be undermined, lessening their effect and usefulness and consequently leading to greater expense in taking proceedings instead of or in addition to accepting undertakings. It follows that a local authority can properly take the view that it is in the interests of the inhabitants of its area to bring (and to be seen to be bringing) proceedings against a trader who has given but then breached an undertaking, even if the trader has subsequently left the authority’s area.

26.        Second, given the timing of WMSL’s re-location (shortly after the search warrant was executed at its Oldham premises), the short distance the business moved and Mr Kay’s continued connections with the Oldham area, the Council was entitled to perceive a real risk that WMSL would return to its Oldham area in the foreseeable future.

27.        Third, the Council was entitled to take into account the likelihood (if not inevitability) that WMSL’s future sale business, whilst conducted nationally, would include sales calls to businesses based in Oldham. Whatever the content and merits of the four complaints which had been received from Oldham based businesses, their existence demonstrate that businesses in Oldham are by no means excluded from the scope of WMSL’s sales calls. If the Council were considering the matter afresh and in isolation, there might be a question as to whether the risk to local businesses justified taking proceedings. But where the Council had already investigated sales practices in question, obtained undertakings and executed a search warrant to establish ongoing breaches, it could readily conclude that the final step of obtaining an injunction was justified to protect the interests of its inhabitants.

28.        As has been emphasised in the authorities referred to above, s.222(1) is widely worded, imposing no express restriction on what a local authority may properly consider to be expedient to promote or protect the interests of its inhabitants. … there is no basis for limiting the matters the local authority may consider to activities taking place within the relevant area or directly affecting its inhabitants. … The fact that future legislation may permit a local authority to act outside its area without express restriction does not mean that such an authority cannot currently do so where it considers it expedient to do so in the interests of its inhabitants, as permitted by s.222(1).”

 

Local Authority Powers

November 21st, 2013 by James Goudie QC in Local Authority Powers

The General Power of Competence (GPOC) under Section 1 of the Localism Act 2011 was held inapplicable in R (MK) v Barking & Dagenham LBC [2013] EWHC 3486 (Admin).  The Court held that the local authority did not have power either under Section 17 of the Children Act 1989 or pursuant to GPOC to accommodate and provide basic subsistence to an “overstayer”.  The safety net power to accommodate a person who was temporarily admitted to the UK was for central government, under Section 4 of the Immigration and Asylum Act 1999, rather than for local government.  Neither GPOC nor the Children Act could be used in order to circumvent the prohibitions on other statutory means of relief which might otherwise be available to the claimant were it not for her immigration status.  There was a comprehensive statutory scheme reflecting Parliament’s intention to exclude those unlawfully in the UK from a whole range of benefits, including the ones relevant to this case.  Section 2 Localism Act restrictions applied to the Section 1 power.  The scope of “pre-commencement limitation” in Section 2(1) of the Localism Act was held (para 76) to be the same as under Section 3 of the Local Government Act 2000 as interpreted by the Court of Appeal in R (Khan) v Oxfordshire County Council [2004] EWCA Civ 309 from para 30.  At para 84 the Judge said that Section 1 of the Localism Act “was not intended by Parliament as a means of overriding a clear statutory scheme prohibiting the provision of benefits of all kinds to those unlawfully in the UK”.

 

Local Authority Powers

May 20th, 2013 by James Goudie QC in Local Authority Powers

Should Birmingham City Council have been granted an Injunction, with a power of arrest attached, restraining an individual from entering a prescribed area of the City, save for certain limited purposes, and from associating with 19 named persons or gathering with them in any public place within the City, and ordering him to undertake prescribed activities?  That was the issue that went from the Birmingham County Court to the Court of Appeal in Birmingham City Council v James [2013] EWCA Civ 552, in which Judgment was given on 17 May 2013.

The factual background was as follows.  For some time Birmingham and some other major cities have suffered from the activities of urban street gangs composed of large numbers of young men. In most cases the gangs are identified by the particular neighbourhoods in which they are based and which they regard as their own territory. Street gangs are responsible for a large amount of crime, particularly violent crime and crime involving drugs and the use of firearms. Violence of a very serious kind, including the use of automatic weapons, is liable to break out when one gang invades the territory of another or when one gang takes reprisals for actual or perceived slights by another.

The legal background is as follows. In the past the Council has attempted to make use of its powers under Section 222 of the Local Government Act 1972 in order to disrupt the activities of gangs by obtaining Injunctions restraining individual gang members from entering parts of the city and associating with other gang members. However, in Birmingham City Council v Shafi [2008] EWCA Civ 1186, [2009] 1 WLR 1961 the Court of Appeal held that Section 222 did not give local authorities substantive powers but was merely procedural in nature, allowing them to exercise powers formerly vested only in the Attorney General. The Court held that although it is possible in some circumstances to obtain an Injunction to prevent a breach of the criminal law, the appropriate way to obtain relief of the kind sought in that case was for the local authority to apply for an ASBO.  The provisions in Part 4 of the Policing and Crime Act 2009 were enacted in response to the Court’s decision in Birmingham City Council v Shafi. Section 34 gives the Court power, on the application of chief constables or local authorities, to grant Injunctions prohibiting the persons to whom they are addressed from acting in ways that would promote gang-related violence or requiring them to act in certain ways, including undertaking prescribed activities.

The Court of Appeal upheld the Injunction.

Moore-Bick LJ said:-

“11.       I do not think it helpful to introduce the concept of mens rea into section 34(2). Although the section is clearly directed primarily to deliberate conduct amounting to participation in, or encouragement of, gang-related violence, it is possible that in some, no doubt unusual, cases it could be held to apply to certain kinds of conduct which could be said to amount to inadvertent encouragement. However, the question does not arise in this case and it is neither necessary nor desirable to explore precisely where the boundary lies.  …”

“13.       … Following the decision of this court in Birmingham City Council v Shafi, in which the view was expressed that an ASBO, rather than an injunction in support of the criminal law, was the appropriate means by which to restrain the defendant from taking part in gang-related violence, Parliament enacted Part 4 of the Policing and Crime Act 2009, which makes specific provision for the granting of injunctions for that purpose. There can be no doubt, therefore, that Part 4 represents Parliament’s considered response to the particular problem of gang-related violence. Although some kinds of gang activity may be classified under the generic description of anti-social behaviour, section 1(1) of the Crime and Disorder Act 1998 was not enacted with a view to dealing specifically with the consequences of gang culture. It is much broader in nature and is apt to apply to anti-social behaviour of all kinds. Section 34, as its terms indicate, is aimed at a particular kind of mischief and the choice of the civil standard of proof appears to have been a deliberate response to the view expressed by the majority in Birmingham City Council v Shafi about the appropriate standard of proof in proceedings for an injunction of the kind that the Council was seeking. In those circumstances I do not think it can possibly have been the intention of Parliament that when considering whether it is necessary to grant a gang injunction the court should ask itself whether an ASBO would provide an adequate remedy. If the condition in subsection (2) is satisfied, it is sufficient that the court consider whether it is necessary to impose a restriction on the respondent’s activities to achieve one or other of the purposes set out in subsection (3). The judge held that if the defendant’s conduct fell within both pieces of legislation the Council could make an application under whichever it considered the more convenient or appropriate. In principle I think that is right, but in any event I am unable to accept that an application under section 34 was inappropriate. …”

 

Public Health

February 11th, 2013 by James Goudie QC in Local Authority Powers

The Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013, Statutory Instrument 2013 No. 218 (“the Regulations”) make provision in relation to Health and Wellbeing Boards established under Section 194 of the Health and Social Care Act 2012 (“the 2012 Act”) (Part 2), local authority public health functions (Part 3) and review and scrutiny of the local health service by local authorities (Part 4).

Part 2 modifies provisions in primary legislation relating to a Committee appointed under Section 102 of the Local Government Act 1972 (“the 1972 Act”) in so far as those provisions relate to Health and Wellbeing Boards and provides that certain  provisions do not apply to Health and Wellbeing Boards. The modification and disapplication provisions also apply to Sub-Committees of Health and Wellbeing Boards and Joint Sub-Committees of such Boards.

Part 3 makes provision for the weighing and measuring of children in attendance at schools under arrangements provided for by local authorities.

Part 4 makes provision in relation to the health scrutiny functions of local authorities. Section 244 of the National Health Service Act 2006 confers a power to make regulations on review and scrutiny of matters relating to the Health Service (“health scrutiny”) by local authorities. The 2012 Act made various changes to the system of health scrutiny. This included provision for health scrutiny functions to be conferred on local authorities directly with powers to enable those authorities to make various arrangements for the discharge of those functions, including discharge by Overview and Scrutiny Committees. Part 4 makes provision accordingly.

The Regulations also provide for exemptions from the Community Right to Challenge under the Localism Act 2011 for certain public health services to be provided by local authorities, two of which are time-limited exemptions.

 

 

Local Government (Deomocracy) (Wales) Bill

November 28th, 2012 by James Goudie QC in Local Authority Powers

This Bill, introduced by the Welsh Government in the Welsh Assembly on 26 November 2012, is intended to reform the organisation and functions of the Local Government Boundary Commission for Wales.  The Bill also contains provisions which would amend the Local Government (Wales) Measure 2011 in relation to the responsibilities of the Independent Remuneration Panel for Wales and the structure of local authority audit committees.  The Bill includes provisions concerning the public’s access to information concerning town and community councils.  The Bill amends Part III of the Local Government Act 2000 to facilitate the creation by local authorities of joint standards committees.  The Bill contains a provision concerning the role of the Chairman or Mayor of principal councils.

Part 2 of the Bill relates to the Local Democracy and Boundary Commission for Wales, as it will be called, implementing proposals in the Mathias Report.  Part 3 describes the types of review of local government areas and arrangements that may be conducted and details the procedure which is to be followed in conducting a review. It also deals with the manner in which any recommendations made as a result of the review are to be implemented. Part 4 relates to reviews by the Commission of qualifying public bodies.

Part 5 of the Bill makes other changes to local government.  Section 51 amends the Local Government Act 1972 so as to allow principal councils to appoint a “presiding member”. A “presiding member” would be able to carry out any of the functions of a council chairman so decided by the council. In particular this provision will enable councils who wish to separate the ceremonial and civic functions associated with the council chairman or mayor from those of presiding over meetings of the council.  No member of the council’s executive may be the presiding member. The term of appointment is a matter for the principal council subject to the limitation that it cannot extend past the next council election.  A council may also appoint a deputy presiding member who, again, must not be a member of the executive.

Section 52 prevents a local authority from promoting a local Bill which concerns a local government area or the political structure of a local authority.

Section 53 requires a community council to publish certain information electronically including details of the council’s membership and business and make provision for members of the public to contact the council or its clerk electronically. The requirement to make information available is subject to normal rules on confidentiality.  A community council must have regard to any guidance issued by the Welsh Ministers in relation to this matter.

Section 54 requires community councils to publish public notices electronically also. Section 55 requires a community council to publish agendas and public reports for forthcoming meetings electronically.

Section 56 amends the Local Government (Wales) Measure 2011 so as to broaden the scope of a democratic services committee so that, if requested by the authority, they can review anything connected with the support and advice made available to elected members and their terms and conditions.

Section 57 amends the Local Government (Wales) Measure 2011 so as to provide that an audit committee of a local authority is one to which the rules of political balance (which are set out in section 15 of the Local Government and Housing Act 1989) apply.

Section 58 enables the Independent Remuneration Panel for Wales, when considering entitlement to a particular payment, to set a limit on the number of councillors who may receive it. This enhances the Panel’s existing power to set a limit on the proportion of councillors who may receive a particular payment.

Section 59 provides that the Welsh Ministers may add to the public bodies whose remuneration should be considered by the Panel. Any such additional body must be one which Welsh Ministers have responsibility for and which includes members of local authorities in its membership. This power is to be carried out by order of Welsh Ministers.

Section 60 changes the date by which the Panel must produce their annual report from 31st December to the 28th February. This has the effect of reducing the time between publication of a report and its implementation the following April. The provisions will also enable the Panel to decide when its reports shall come into force and to backdate its decisions for up to three months.  Section 61 provides that consultation times on draft supplementary reports, currently set at 8 weeks, would be varied to between four and eight weeks.

Section 62 provides that the Panel may require local authorities to publish details of any income received by their members from specified public bodies.

Section 63 amends section 53 of the Local Government Act 2000 so that one or more relevant authorities (ie a county or county borough council, national park authority or a fire and rescue authority in Wales) may establish a joint standards committee. An authority considering establishing a joint committee must have regard to any guidance issued by the Welsh Ministers.  Section 63 also amends section 54 of the 2000 Act to provide that a standards committee must, in exercising any of its functions, have regard to any relevant guidance issued by the Welsh Ministers.

 

Consent For Disposal Of Land

October 22nd, 2012 by James Goudie QC in Local Authority Powers

Clause 6 of the Growth and Infrastructure Bill removes an anomaly whereby currently general consents for the disposal of land by local authorities can be given under LGA 1972 for less than best consideration but cannot be given under TCPA 1990 where land is held for planning. Clause 6 amends s233 of TCPA 1990 (disposal by local authorities of land held for planning purposes) by providing for the SoS to grant general consent for disposals as well as specific consent upon receipt of an application from a local authority. Subsection (2) enables the SoS to give consent generally for the disposal of land at less than the best consideration reasonably obtainable. Such consent may be granted by reference to any particular disposal or disposals, or in relation to a particular class of disposals; local authorities generally, or local authorities of a particular class, or to any particular local authority or authorities, and either unconditionally or subject to conditions (either generally or in relation to any particular disposal or disposals or class of disposals). Subsection (3) applies the protection for purchasers in respect of certain land transactions contained in s128(2) of LGA 1972 to all purchasers of land disposed of by local authorities under s233 of TCPA 1990. At present, s128(2) applies to some purchases under s233 but not to all purchases under s233. Such transactions will not be void where a local authority has failed to obtain the relevant consent and a prospective purchaser will not have to enquire whether the disposing local authority has obtained the necessary consent.

 

Sustainable Communities

June 28th, 2012 by James Goudie QC in Local Authority Powers

The Sustainable Communities Regulations 2012, SI 2012/1523, come into force on 26 July 2012, in England only.  They are the first Regulations to be made under the Sustainable Communities Act 2007, as amended in 2010.  The 2007 Act provides a channel whereby local people can ask Central Government, via their local authority, to take action which they consider will help improve the economic, social or environmental well-being of their area.  The Act provides for the SoS to invite local authorities to consult locally and to make proposals for enhancing local sustainability and well-being.  The main elements of the Regulations are that: (1) local authorities must, before making a proposal, to consult and try to reach agreement about the proposal with representatives of interested local persons, and have regard to guidance issued by the SoS; (2) the SoS must consider each proposal, and publish the decision, giving reasons, and the action to be taken if the proposal is to be implemented; (3) a “Selector” will be appointed who will consider the resubmission of proposals from local authorities whose proposals have been rejected by the SoS: the Selector must decide whether to submit them to the SoS for reconsideration, giving reasons, and must appoint an Advisory Panel to assist it in deciding whether these proposals should be submitted for reconsideration; and (4) the SoS must publish proposals submitted by the Selector with its reasons, and and must then consult and try to reach agreement with the Selector, before publishing the subsequent decision and giving reasons, and specifying the action to be taken if the proposal is to be implemented.

 

 

Public Sector Equality Duty (“PSED”)

June 13th, 2012 by James Goudie QC in Local Authority Powers

In R (Siwak) v Newham LBC (2012) EWHC 1520 (Admin) Cranston J held that the local authority had not failed to comply with the PSED under s149 of Equality Act 2010.  Policies under formulation were the subject of equality analysis.  It was not for the Court to micro-manage the process.  Consultation before proposals were formulated would have been premature.