Disclosure of information

January 10th, 2023 by James Goudie KC in Non Judicial Control

In SPOTLIGHT ON COMPETITION v INFORMATION COMMISSIONER, EA-2022-0014 & EA-2022-0061, the First Tier Tribunal is concerned with loans to support businesses during the Covid pandemic, holds that it is not in the public interest to release information that could expose the recipients to fraudsters by revealing the recipients’ names, and summarises the principles relating to the “commercial interests “ exemption from disclosure under the Freedom of Information Act 2000 as follows : –

  1. “ Commercial interests “ should be interpreted “ broadly “ : paras 188/189;
  2. The exemption is “ prejudice based “ : para 190;
  3. The prejudice must be more probable than not : there must be a real and significant risk of prejudice : ibid;
  4. The public authority must show that (i) there is some causative link between the potential disclosure and the prejudice, and (ii) the prejudice is real, actual or of substance : ibid;
  5. The harm must relate to the interests protected by the exemption : ibid;
  6. It is a qualified exemption : para 191;
  7. In considering the factors that militate against disclosure the primary focus should be on the particular interest which the exemption is designed to protect : para 192;
  8. Where the specified activity or interest which would be likely to be prejudiced is a public interest, there is an overlap between whether or nor not the commercial interest exemption is engaged and any subsequent analysis of the public interest test : para313;

There is a public interest in preventing prejudice to commercial interests : para 314.


Local Government Ombudsman

July 1st, 2022 by James Goudie KC in Non Judicial Control

In PIFFS ELM LTD v COMMISSION FOR LOCAL ADMINISTRATION IN ENGLAND (2022) EWHC 1547 (Admin) the Court holds that the Local Government and Social Care Ombudsman (the LGO) has an implied power, under Section 30 in Part 3 of the Local Government Act 1974 (LGA 1974) to withdraw a Final Report, in order to conduct further investigation, under Sections 24A, 26 and 28, and potentially to issue a further Report, with a different outcome.

The statutory provisions confer a very wide discretion on the LGO to decide what complaints he/she should or should not investigate and whether or not to continue or discontinue any such investigation, subject to review by the Court on the usual public law grounds.  Authorities have emphasised the informal nature of the process.

The Courts have noted the utility of the practice of the LGO of inviting comments on their draft Report from the authority and the aggrieved person before the decision is issued. Read more »



April 23rd, 2021 by James Goudie KC in Non Judicial Control

In Moss v Kingston RLBC (2021) EWHC 1032 ( Admin ) Thornton J stated that (1) a public’s right to inspect a local authority’s accounts is a long standing right : para 61; (2) the statutory right of inspection does not lie in policies of transparency and openness, but in financial and democratic accountability of public authorities for the use of public money and the conduct of public business : para 62; (3) The main purposes of the rights to inspect, question the auditor and object to the accounts are to enable electors and other persons interested to assist the auditor in his audit, in advance of its completion : para 63; (4) The auditor must satisfy himself that the authority has made proper arrangements for the 3Es, economy, efficiency and effectiveness : para 64; (5) The right of inspection is subject to the gateways that a sufficient interest must be demonstrated and it must be the right time in the audit timetable : para 67; .and (6) The potential exemptions from the right to inspect are limited and do not include the audited body’s time or cost of compliance : paras 69-76 inc.



February 19th, 2019 by James Goudie KC in Non Judicial Control

The Local Audit (England and Wales) (Amendment) (EU Exit) Regulations 2019 will enable EU qualified auditors currently auditing local public bodies to continue to work in the UK, for a transitional period, in the event of a “no deal”. The Regulations are pursuant to powers in Section 8 of the European Union (Withdrawal) Act 2018, and are subject to the negative resolution procedure. There are now 238 Withdrawal Act Statutory Instruments.

Read more »


Inspection of accounting records

May 2nd, 2017 by James Goudie KC in Non Judicial Control, Social Care

On 27 April 2017 the Local Audit (Public Access to Documents) Act 2017, extending to England and Wales, received the Royal Assent. It extends, 2 months after this date, access to certain documents under Section 26 of the Local Audit and Accountability Act 2014.  Section 26 of the 2014 Act is amended so that in subsection (1) persons who can inspect “accounting records and related documents” are extended to “any journalist”.  “Journalist” means “any person who produces for publication journalistic material”. This applies whether or not the person is paid.


Pension Ombudsman

March 23rd, 2017 by James Goudie KC in Non Judicial Control

Section 146 of the Pension Schemes Act 1993 sets out the functions of the Pensions Ombudsman (“the PO”). The PO may investigate and determine various specified matters.  These include a complaint made to him by an actual or potential beneficiary of an occupational pension scheme who alleges that he or she has sustained injustice in consequence of “maladministration”.  There is no statutory definition of “maladministration”.  It is well established that it is a “broad concept”, which goes further than a violation of legal rights.  There can be “maladministration” even if a person’s legal rights are not infringed.  In Baugniet v Teachers’ Pensions [2017] EWHC 501 (Ch) the High Court repeated with respect to the powers of the PO that:-

(1)       The PO must decide disputes in accordance with established legal principles rather than by reference to what he himself considers to be fair and reasonable;

(2)       In general, the PO does not have the power to make an order that the Court could not make, although the PO is not tied to the precise form of relief a court would grant;

(3)       Injustice resulting from maladministration not involving infringement of legal rights may be afforded a remedy, such as an apology and/or modest compensation for distress or inconvenience;

(4)       Absent very exceptional circumstances, an award for maladministration not involving infringement of legal rights should not exceed £1,600.



Local authority boycotts

February 22nd, 2016 by Peter Oldham QC in Best Value, Decision making and Contracts, Non Judicial Control

A House of Commons briefing paper of 19th February 2016, which can be found here, notes that the Government is introducing new rules and guidance to limit the extent to which local authorities in England and Wales can use boycotts in their procurement and pensions investment policies.

On procurement, the Government has published Procurement Policy Note 01/16 on 17th February 2016 here which says:-

“Public procurement should never be used as a tool to boycott tenders from suppliers based in other countries, except where formal legal sanctions, embargoes and restrictions have been put in place by the UK Government.”

On pensions, the briefing paper refers to the DCLG’s consultation on the draft Local Government Pension Scheme (Management and Investment of Funds) Regulations 2016 (here), which closed on 19th February 2016, and to proposed guidance from SoS that environmental, social and corporate governance factors in investment decisions should reflect foreign policy.  The power to give guidance is in draft reg 7(1) and an authority’s investment strategy “must be in accordance” with it.



Accounts and Audit

February 18th, 2015 by James Goudie KC in Non Judicial Control

The Accounts and Audit Regulations 2015, SI 2015/234, which come into force on 1 April 2015, revoke the Accounts and Audit (England) Regulations 2011, SI 2011/817, and set out the detailed requirements on a “relevant authority” (other than a health service body) in relation to keeping adequate accounting records and control systems, preparing, approving and publishing a statement of accounts, and making various documents available for public inspection, and objection and questioning by local electors.  The authority “must ensure” that it has (and reviews) a “sound system of internal control”: Regulation 3.  It “must undertake an effective internal audit”: Regulation 5.  There is a new requirement to prepare and publish a “narrative statement”, commenting on the authority’s financial performance and economy, efficiency and effectiveness in the use of resources over the year.


Accounts and Audit (Wales)

January 13th, 2015 by James Goudie KC in Non Judicial Control

The Accounts and Audit (Wales) Regulations 2014, SI 2014/3362 (W.337), made and laid before the National Assembly on 23 December 2014, and coming into force on 31 March 2015, make provision with respect to the accounts and audit of bodies whose accounts are required to be audited in accordance with Section 39 of the Public Audit (Wales) Act 2004 (“the 2004 Act”) other than a local probation board for an area in Wales or a Welsh probation trust. The bodies who are subject to the Regulations are: county and county borough councils (and their committees and joint committees); community councils; fire and rescue authorities; National Park authorities; police and crime commissioners; chief constables; port health authorities; internal drainage boards; and conservation boards.

The Regulations replace the Accounts and Audit (Wales) Regulations 2005 which, together with amending Regulations, are revoked.

The Regulations differ in a number of respects from previous Accounts and Audit Regulations. Of particular note among the changes are the following: the bodies which are subject to the Regulations are specified on the face of the Regulations; the increase in the threshold of gross income or gross expenditure for smaller relevant bodies, from £1 million per year to not more than £2.5 million (regulation 2); changes to the procedures for approving and publishing accounts (regulations 10 and 15); the separation of procedures governing published accounts and audit for larger relevant bodies from that for smaller relevant bodies in the structure of the Regulations (see Parts 4 and 5); and it is no longer an offence to fail to comply with any aspect of the Regulations.

Part 1 is introductory.  Regulation 2 sets out the defined terms used in the Regulations.

Part 2 concerns specifying bodies so that those bodies come within the meaning of local authority for the purposes of Section 23(1) of the Local Government Act 2003. Under that Section the Welsh Ministers may make provision about accounting practices to be followed by local authorities as defined in the 2003 Act. Regulation 3 specifies internal drainage boards and port health authorities and regulation 4 identifies accounting practices for those bodies.

Part 3 concerns financial management and internal control. Regulation 5 requires relevant bodies to be responsible for ensuring that the financial management of the body is adequate and effective and the body has a sound system of internal control which they regularly review. Regulation 6 makes provision in respect of the accounting records which are to be kept, and the control systems that must be maintained, by relevant bodies. Regulation 7 makes provision for relevant bodies to maintain an adequate and effective internal audit of their accounting records and system of internal control.

Part 4 concerns the published accounts and audit for larger relevant bodies. Regulation 8 contains the requirements for the preparation of the statement of accounts for a body; regulation 9 the requirement for the statement of accounts to include notes relating to remuneration; regulation 10 the requirements for signing, approval and publication of the statement of accounts; regulation 11 the procedure for the public to inspect the accounts of a body; regulation 12 the procedure for a body to give notice of the public rights relating to the accounts and audit procedure; and regulation 13 the requirement for a body to give notice as to the conclusion of audit and the availability of its statement of accounts for inspection by local government electors.

Part 5 concerns the published accounts and audit for smaller relevant bodies. Regulation 14 contains the requirements for the preparation of accounting statements for a body; regulation 15 the requirements for signing, approval and publication of accounting statements; regulation 16 the procedure for the public to inspect the accounts of a body; regulation 17 the procedure for a body to give notice of the public rights relating to the accounts and audit procedure; and regulation 18 the requirement for a body to display a notice stating that the audit has concluded and that the relevant accounting statements are available for inspection by local government electors.


Local Audit

December 11th, 2014 by James Goudie KC in Non Judicial Control

The Local Audit (Auditor Panel) Regulations 2014, SI 2014/3224 (“the Regulations”) relate to the Auditor Panels who will advise on the appointment, removal, or resignation of the auditors of relevant authorities.  The Regulationsmake provision about Auditor Panels established under Part 3 of the Local Auditand Accountability Act 2014 (“the 2014 Act”) by relevant authorities (as to which, see Schedule 2 to that Act). Section 9 of, and Schedule 4 to, the 2014 Act contain provisions about establishment of Auditor Panels, and Section 10 sets out the Panel’s functions.

Regulations 2 to 6 make provision about the membership of Auditor Panels, removal of Panel Members on disqualification, allowances for Panel Members and proceedings of Panel Meetings.  Regulation 7 contains more detail about a Panel’s functions under Section 10(1) to (3) of the 2014 Act. Regulations 8 to 10 apply certain enactments relating to local authorities and local authority committees to Auditor Panels and appointments to such Panels, subject to modifications, including enactments relating to access to meetings and documents and enactments relating to political balance.