Structural funds

July 15th, 2016 by James Goudie KC in Capital Finance and Companies

Case C-460/14, brought by the City of Wroclaw in Poland, concerns the award of a public contract for the construction of a ring road in Wroclaw. The project benefited from EU financial assistance. The City stipulated in the tender specifications that the successful tenderer was to perform at least 25% of the works covered by the contract using its own resources. The public authority in Poland competent to verify proper use of the EU funding took the view that that stipulation infringed the principle of fair competition and therefore was inconsistent with Directive 2004/18/EC.  As a consequence, that authority imposed on the City a flat rate correction of 5% of the amount of eligible costs borne by public funds. The City challenged the financial correction before a Polish Administrative Court, which made a reference to the ECJ.

Directive 2004/18 coordinated at EU level national procedures for the award of public contracts above a certain value.  It aimed to ensure the effects of the principles of freedom of movement of goods, freedom of establishment, and freedom to provide services and the principles deriving therefrom, including the principles of equal treatment, non-discrimination and transparency. It also aimed to guarantee the opening-up of public procurement to competition. The Directive contained provisions on subcontracting, in order to encourage the involvement of small and medium-sized undertakings in the public contracts procurement market.  Pursuant to the first paragraph of Article 25 (“Subcontracting”), in the contract documents, the contracting authority might ask or may be required by a Member State to ask the tenderer to indicate in his tender any share of the contract he may intend to subcontract to third parties and any proposed subcontractors. Under Article 26 (“Conditions for performance of contracts”), contracting authorities might lay down special conditions relating to the performance of a contract, provided that these are compatible with EU law and are indicated in the contract notice or in the specifications.

Article 1(1) of Council Regulation No. 2988/95 provides: “For the purposes of protecting the European Union’s financial interests, general rules are hereby adopted relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to EU law”. Article 1(2) defines “irregularity” as “any infringement of a provision of EU law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the European Union or budgets managed by it, either by reducing or losing revenue accruing from own resources collected directly on behalf of the European Union, or by an unjustified item of expenditure”.  Article 2 provides in particular that administrative checks, measures and penalties shall be introduced in so far as they are necessary to ensure the proper application of EU law. They shall be effective, proportionate and dissuasive so that they provide adequate protection for the European Union’s financial interests.

Regulation No. 1083/2006 lays down general rules governing the Funds, i.e. the European Regional Development Fund, the European Social Fund and the Cohesion Fund, including principles and rules on financial management, monitoring and control on the basis of responsibilities shared between the Member States and the European Commission.

In its Judgment on 14 July 2016 the ECJ held that Directive 2004/18 prohibited a contracting authority such as the City of Wroclaw from stipulating that the successful tenderer for a public works contract was required to perform part of those works, specified in abstract terms as a percentage, using its own resources; and that Article 98 of Regulation 1083/2006, read in conjunction with Article 2(7) of that Regulation, must be interpreted as meaning that the fact that a contracting authority imposed a requirement, in the context of a public works contract relating to a project receiving EU financial aid, that the future contractor perform by means of its own resources at least 25% of those works, in infringement of Directive 2004/18, constitutes an “irregularity” within the meaning of Article 2(7) of that regulation, justifying the need to apply a financial correction under Article 98 thereof, in so far as it cannot be excluded that that infringement had an impact on the budget of the Fund at issue. The amount of that correction must be calculated by taking into account all of the specific circumstances which are relevant in the light of the criteria referred to in the first paragraph of Article 98(2) of that Regulation, namely the nature and gravity of the irregularity and the resulting financial loss to the Fund concerned.

 

Public contract award procedures

July 15th, 2016 by James Goudie KC in Decision making and Contracts

In Case C-6/15, TNS Dimarso NV v Vlaams Gewest, Judgment on Bastille Day 2016, the ECJ has held that Article 53(2) of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, read in the light of the principle of equal treatment and of the consequent obligation of transparency, must be interpreted as meaning that, in the case of a public service contract to be awarded pursuant to the criterion of the most economically advantageous tender in the opinion of the contracting authority, that authority is not required to bring to the attention of potential tenderers, in the contract notice or the tender specifications relating to the contract at issue, the method of evaluation used by the contracting authority in order to specifically evaluate and rank the tenders. However, that method may not have the effect of altering the award criteria and their relative weighting.

The ECJ stated the principles as follows:-

“… it should be noted that where the contracting authority decides to award a contract to the most economically advantageous tender, under Article 53(2) of Directive 2004/18, it must specify in the contract notice or the tender specification the relative weighting it gives to each of the award criteria chosen in order to determine the most economically advantageous tender. That weighting may be expressed by providing for a range with an appropriate maximum spread. Where, in the opinion of the contracting authority, weighting is not possible for demonstrable reasons, the contracting authority shall indicate in the contract notice or tender specifications or, in the case of a competitive dialogue, in the descriptive document, the criteria in descending order of importance.

As stated in recital 46 of Directive 2004/18, the purpose of those requirements is to enable all tenderers to be reasonably informed of the criteria and arrangements which will be applied to identify the most economically advantageous tender. In addition, they reflect the duty of the contracting authorities under Article 2 of the directive to treat economic operators equally and non-discriminatorily and to act in a transparent way.

According to settled case-law, the principle of equal treatment and the obligation of transparency entail, in particular, that tenderers must be in a position of equality both when they formulate their tenders and when those tenders are being assessed by the contracting authority …

Thus, the Court has held that the subject matter of each contract and the criteria governing its award must be clearly defined from the beginning of the award procedure … and that a contracting authority cannot apply, by way of award criteria, sub-criteria which it has not previously brought to the tenderers’ attention … Similarly, the contracting authority must interpret the award criteria in the same way throughout the procedure …

Those requirements apply, in principle, mutatis mutandis to contracting authorities’ obligation to indicate, in the contract notice or the tender specifications, the ‘relative weighting’ of each of the award criteria. Thus, the Court has held that a contracting authority may not, in principle, apply weighting rules which it has not previously brought to the tenderers’ attention …

In particular, the relative weighting of each of the award criteria must, subject to the third subparagraph of Article 53(2) of Directive 2004/18, be clearly defined from the beginning of the award procedure, thus enabling tenderers to establish objectively the actual importance given to an award criterion relative to another during their subsequent evaluation by the contracting authority. Similarly, the relative weighting of each of the award criteria cannot be changed throughout the procedure.

Nonetheless, the Court has accepted that it is possible for a contracting authority to determine, after expiry of the time limit for submitting tenders, weighting factors for the sub-criteria which correspond in essence to the criteria previously brought to the tenderers’ attention, provided that three conditions are met, namely that that subsequent determination, first, does not alter the criteria for the award of the contract set out in the tender specifications or contract notice; secondly, does not contain elements which, if they had been known at the time the tenders were prepared, could have affected their preparation; and, thirdly, was not adopted on the basis of matters likely to give rise to discrimination against one of the tenderers …

However, neither Article 53(2) of Directive 2004/18 nor any other provision thereof lays down an obligation on the contracting authority to bring to the attention of potential tenderers, by publication in the contract notice or in the tender specifications, the method of evaluation applied by the contracting authority in order to effectively evaluate and assess the tenders in the light of the award criteria of the contract and of their relative weighting established in advance in the documentation relating to the contract in question.

Nor is such a general obligation apparent from the case-law of the Court.

The Court has held that an evaluation committee must be able to have some leeway in carrying out its task and, thus, it may, without amending the contract award criteria set out in the tender specifications or the contract notice, structure its own work of examining and analysing the submitted tenders …

That leeway is also justified by practical considerations. The contracting authority must be able to adapt the method of evaluation that it will apply in order to assess and rank the tenders in accordance with the circumstances of the case.

In accordance with the principles governing the award of contracts provided for in Article 2 of Directive 2004/18 and in order to avoid any risk of favouritism, the method of evaluation applied by the contracting authority in order to specifically evaluate and rank the tenders cannot, in principle, be determined after the opening of the tenders by the contracting authority. However, in the event that the determination of that method is not possible for demonstrable reasons before the opening of the tenders … the contracting authority cannot be criticised for having established it only after that authority, or its evaluation committee, reviewed the content of the tenders.

In any event, pursuant to the principles governing the award of contracts … the determination by the contracting authority of the method of evaluation after the publication of the contract notice or the tender specifications cannot have the effect of altering the award criteria or their relative weighting.”

 

Level of Support

July 13th, 2016 by James Goudie KC in Social Care

In R (C, T, M and U) v Southwark LBC (2016) EWCA Civ 707 the claimants challenged the lawfulness of the accommodation and the level of financial support provided by Southwark Council to a family who have no right of recourse to public funds.  Three issues were considered by the Court of Appeal: (i) Whether the Council had an unlawful policy or practice of setting financial support to those seeking assistance under Section 17 of the Children Act 1989 (“CA 1989”) at the level of child benefit in the circumstance that they otherwise had no right of recourse to public funds; (ii) Whether the Council had an unlawful policy or practice of setting financial support to those seeking assistance under Section 17 CA 1989 at the level of payments which would have been made to asylum seekers or failed asylum seekers by the Secretary of State under Sections 4 and 95 of the Immigration and Asylum Act 1999 (“IAA 1999) in the circumstance that they otherwise had no recourse to public funds; and (iii) Whether the Council breached the appellants’ Article 8 ECHR rights because it provided them with financial support at a level less than that which it knew was necessary to prevent breach and, if so, whether the appellants are entitled to damages in respect of the breach.

The Court of Appeal observed:-

“12.It is settled law that the section 17 scheme does not create a specific or mandatory duty owed to an individual child. It is a target duty which creates a discretion in a local authority to make a decision to meet an individual child’s assessed need. The decision may be influenced by factors other than the individual child’s welfare and may include the resources of the local authority, other provision that has been made for the child and the needs of other children (see, for example R (G) v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208 at [113] and [118]). Accordingly, although the adequacy of an assessment or the lawfulness of a decision may be the subject of a challenge to the exercise of a local authority’s functions under section 17, it is not for the court to substitute its judgment for that of the local authority on the questions whether a child is in need and, if so, what that child’s needs are, nor can the court dictate how the assessment is to be undertaken. Instead, the court should focus on the question whether the information gathered by a local authority is adequate for the purpose of performing the statutory duty i.e. whether the local authority can demonstrate that due regard has been had to the dimensions of a child’s best interests for the purposes of section 17 CA 1989 in the context of the duty in section 11 Children Act 2004 to have regard to the need to safeguard and promote the welfare of children. It is perhaps helpful to examine that question in a little more detail.

13. Where a person has no right of recourse to public funds (i.e. the person is ineligible as a matter of law to have recourse to public funds or to the payment of sums under the Immigration and Act 1999 [‘IAA 1999’] see, for example section 54 and schedule 3 to the Nationality, Immigration and Asylum Act 2002 [‘NIAA 2002’] and paragraph 6 of the Immigration Rules), that person remains eligible to receive support from a local authority in the exercise of its powers under section 17 CA 1989. That is because, by paragraphs 2 and 3 of Schedule 3 NIAA 2002, there is an exception to the ineligibility of persons who are prohibited from being provided with mainstream housing and welfare benefits where the ineligible person is a child or the provision of section 17 support is necessary for the purpose of avoiding a breach of a person’s Convention rights … The local authority is, however, prohibited from providing accommodation or assistance for such a family pursuant to the Housing Act 1996 [‘HA 1996’].

14. A local authority that provides support for children in need under the 1989 Act is acting under its powers as a children’s services authority (a local social services authority with responsibility for children) not as a local social services authority performing functions relating to homelessness and its prevention, and not as a local housing authority. The limited nature of the local authority’s power is important. …

15. Accordingly, although in this case the local authority provided accommodation and financial support, it did so under section 17 CA 1989 and not as a consequence of any other statutory scheme. In so doing, the local authority was not required to have regard to guidance issued under another statutory scheme, for example the Homelessness Code of Guidance issued under section 182 HA 1996. That said, the overarching obligation imposed on local authorities in England (and their specified partner agencies) by section 11 CA 2004 is to “make arrangements for ensuring that – (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.” That overarching obligation casts the evidential net rather wide so that a decision based on an assessment undertaken for the purposes of section 17 CA 1989 should identify how the local authority has had regard to the need to safeguard and promote the welfare of children both individually (i.e. the subject children as regards the claim) and collectively: …

16. The Secretary of State has issued guidance to local authorities in accordance with section 7 of the Local Authority and Social Services Act 1970 about assessments of need for the purposes of section 17 CA 1989. That guidance is to be followed save in exceptional circumstances (following the principle … that a local authority has liberty to deviate from the Secretary of State’s guidance only on admissible grounds for good reason but without the freedom to take a substantially different course). …

17. There are no categories or sub-divisions of ‘children in need’ in the statutory scheme. That is hardly surprising given the enormous range of circumstances in which children present to the authorities with needs that may require assessment. That is why there is a generic assessment framework with identifiable factors that is the object of the central Government guidance that has been issued. A local authority can be expected to evidence that due regard has been had to the framework dimensions and that there has been a proper appreciation of the potential impact of the decisions that have been made on the best interests of the individual children. The decision maker would be expected to demonstrate that the impact on the individual child’s welfare is proportionate given the other factors to which they are entitled to have regard, for example, the needs of other children and the resources of the local authority.”

“21. Given that the legislative purpose of section 17 CA 1989 in the context of section 11 CA 2004 is different from that in sections 4 and 95 IAA 1999, it would be difficult for a local authority to demonstrate that it had paid due regard to the former by adopting a practice or internal guidance that described as its starting point either the child benefit rate or either of the IAA support rates. The starting point for a decision has to be an analysis of all appropriate evidential factors and any cross-checking that there may be must not constrain the decision maker’s obligation to have regard to the impact on the individual child’s welfare and the proportionality of the same.

22. There is no necessary link between section 17 CA 1989 payments and those made under any other statutory scheme; quite the contrary. The section 17 scheme involves an exercise of social work judgment based on the analysis of information derived from an assessment that is applicable to a heterogeneous group of those in need. That analysis is neither limited nor constrained by a comparison with the support that may be available to any other defined group, no matter how similar they may be to the section 17 child in need. In any event, the circumstances of those who qualify for section 17 support, those who have just arrived seeking asylum and those who have failed in their application to be granted asylum are sufficiently different that it is likely to be irrational to limit section 17 support to that provided for in a different statutory scheme.

23. In so far as it was submitted that destitution as defined by section 95 IAA 1999 i.e. an inability to meet essential living needs or inadequate accommodation, or by section 4 IAA 1999 i.e. destitution in the context of accommodation, is relevant to section 17 CA 1989, the difference between the purposes of the two statutory schemes must be borne in mind. The latter scheme is to be applied to those persons who would otherwise be ineligible for recourse to public funds in order to avoid a breach of their Convention rights. Furthermore, the section 17 scheme, unlike the IAA schemes, is not the subject of regulations that make provision for the support which is to be made available to the defined group for a specific purpose.”

The Court came to the conclusion that there was no basis to challenge the Council’s  decisions based upon a flawed policy or practice that the Council inflexibly fixed its support payments. It did not base its decisions on such things. The Court was equally clear that it would have been inappropriate for the Council to have benchmarked its payments under Section 17 CA 1989 to any other statutory scheme including that applicable under the IAA 1999. Accordingly, the Court did not accept that there had been a breach of Article 8 founding an entitlement to damages.

 

Housing

July 13th, 2016 by James Goudie KC in Housing

A person can rid of himself or herself of the status of being intentionally homeless. The question often is whether this is what has happened.  The main circumstances in which the status will cease is if “settled” accommodation is found which is subsequently lost.  The question whether accommodation is “settled” is one of fact and degree to be determined objectively and without reference to the subjective motives or beliefs of either the homeless person or the local authority.

In Huda v Redbridge LBC [2016] EWCA Civ 709 the person contended that “settled” accommodation was constituted by the fact that he had been occupying, with his family, a property under licence from a third party (L), which was procured by Redbridge Council (R) for his benefit in performance of its limited housing duty under Sections 190 of the Housing Act 1996 to persons who are in priority need but are also found to be intentionally homeless.

The Court of Appeal held that all relevant facts had to be considered. In particular, no distinction could be drawn between those factors evident from the licence agreement and factors that arose from outside the agreement, including that he had been told that no greater housing duty was owed to him. Given that his right to occupy was precarious, and that he could not have any reasonable expectation of continuing in occupation for a significant period of time, R’s reviewing officer had been entitled to find that the accommodation was not settled.

 

Contracts

July 4th, 2016 by James Goudie KC in Decision making and Contracts

There have been a number of important recent Court of Appeal decisions on the law of contract, including in relation to the following propositions: (1) if a party to an agreement promises to make extra payment in order to secure the other party’s promise to perform his existing contractual obligation to provide services and, as a result, secures a benefit, then the benefit is capable of constituting consideration for the promise: MWB Business Exchange Centres v Rock Advertising (2016) EWCA Civ 553 (“MWB”); (2) the fact that a contract contains a clause requiring any amendment to be in writing and signed by both parties does not prevent them from later making a new contract varying the contract by an oral agreement, or by conduct: Globe Motors v TRW Lucas Varity Electric Steering [2016] EWCA Civ 396, MWB; (3) a contract may be concluded where there is acceptance by the claimant by conduct of a written agreement signed by the defendant stated to be binding only after signature by the claimant: Reveille Independent LLC v Anotech International (2016) EWCA Civ 443.

 

Legitimate Expectation

July 1st, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

Three cases hot off the press more or less together on legitimate expectation. First and foremost the decision of the Privy Council in United Policyholders Group v Attorney General of Trinidad and Tobago [2016] UKPC 17.  Lord Neuberger gives the main Judgment.  He restates the basis of the doctrine: (i) where a public body (ii) states that it will do (or not do) something (iii) a person who reasonably (iv) relied (v) on that statement (vi) should (vii) in the absence of good reasons (viii) be entitled to rely on the statement and (ix) enforce it through the Courts.  He reaffirms at paragraphs 37/38 a number of points: (1) in order to found a claim based on the principle, it is clear that the statement in question must be “clear, unambiguous and devoid of relevant qualification”; (2) the principle cannot be invoked if, or to the extent that, it would interfere with the public body’s statutory duty; (3) however much a person is entitled to say that a statement by a public body gave rise to a legitimate expectation on his part, circumstances may arise where it becomes inappropriate to permit that person to invoke the principle to enforce the public body to comply with the statement, either on account of (2) above or if, taking into account both the fact that the principle applies and in all other relevant circumstances the public authority should or could reasonably decide not to comply with the statement.  Lord Neuberger continues, at paragraph 39, that it is clear that legitimate expectation can be invoked in relation to most, if not all, statements as to procedure, but it is unclear how far it can be implied in relation to statements as to substantive matters, for instance statements in relation to the macro- economic/macro-political field.  On this occasion, it was unnecessary to consider the law on this “difficult and important topic” more fully.

Lord Carnwath gave a lengthy concurring Judgment. He concluded, at paragraph 121:

“In summary, the trend of modern authority, judicial and academic, favours a narrow interpretation of the Coughlan principle, which can be simply stated. Where a promise or representation, which is “clear, unambiguous and devoid of relevant qualification”, has been given to an identifiable defined person or group by a public authority for its own purposes, either in return for action by the person or group, or on the basis of which the person or group has acted to its detriment, the court will require it to be honoured, unless the authority is able to show good reasons, judged by the court to be proportionate, to resile from it. In judging proportionality the court will take into account any conflict with wider policy issues, particularly those of a “macro-economic” or “macro-political” kind.”

In R (Lahrie Mohamed) v HMRC, Judgment 28 June 2016, Elizabeth Laing J stated the principles thus: that to establish a legitimate expectation as a result of a particular representation it had to be shown that (1) a claimant had put all his cards on the table, (2) a representation had been made, (3) the representation was clear, unambiguous and devoid of any relevant qualification, (4) the representation had been relied upon by the claimant, (5) and it had been relied upon to his detriment.  She added that it was especially difficult to satisfy the requirement that a claimant had to put all his cards on the table where it had been a purely oral exchange.

In R (Biffa Waste Services Ltd) v HMRC [2016] EWHC 1444 (Admin) Sir Kenneth Parker considered legitimate expectation as a result of guidance by way of what is to be regarded as a general statement.  He restated the law on legitimate expectation/abuse of power from paragraph 77.  He accepted that the determination of the meaning and scope of any representation or assurance by a public authority is not an exercise in mere semantics.  The Court, having regard to the relevant legal and factual circumstances, must ascertain, where appropriate, what is fairly and reasonably implicit in such assurance: “Evaluating the fairness of the conduct of a public authority is not an exercise in semantics: it is necessary to ascertain, against the relevant legal and factual matrix, what the representation fairly and reasonably meant to those to whom it was made”.

At paragraph 115 Kenneth Parker J added: “On the footing … that public law recognizes a principle of conspicuous unfairness I would have been prepared to hold, had it been necessary, that a public authority … may not, without infringing that principle, put forward as the true meaning of a particular representation an interpretation that is wholly inconsistent with what the public authority intended at the time of that representation in question.”

 

PSED

June 29th, 2016 by James Goudie KC in Human Rights and Public Sector Equality Duty

In R (Jewish Rights Watch) v Leicester City Council (2016) EWHC 1512 (Admin) a Divisional Court stated that, while it is clear that a public authority must comply with the PSED, this obligation is more easily applied to a formal and developed policy than it is to resolutions of a local council following debate. The PSED obligations apply primarily, if not exclusively, to those involved in the process of framing and implementing policy (the Executive, in constitutional terms) rather than those who debate broad issues which may result in policies subsequently drafted and framed in accordance with the law. The PSED did not apply to a non-binding resolution.  Nor, for similar reasons, was Section 17 of the Local Government Act 1988 engaged when the resolution was about public works contracts that were an executive responsibility.

 

Lobbying

June 23rd, 2016 by James Goudie KC in Planning and Environmental

Ministers making planning decisions (such as an application for planning permission for a wind farm) should not allow themselves to be lobbied, by parties to the planning process, or by local MPs: Broadview Energy Developments Ltd v SoS for CLG and South Northamptonshire District Council [2016] EWCA Civ 562, considering the duty to act and to be seen to act fairly and even-handedly owed by political decision-makers (such as a decision by the SoS on a “recovered”, i.e. called in, planning application).  The Court of Appeal drew attention (para 16) to the February 2012 Guidance on Planning Propriety Issues from the SoS’s own Department.  Longmore LJ relied (para 25) on the “fundamental principle of the common law” which requires a decision-maker to listen to and take into account both sides of an argument, and continued:

“26.      To a 21st century public lawyer this is a stark and obvious application of the principle that a decision-maker must not entertain representations from one party without finding out what other parties have to say on the matter. Nevertheless the principle has to be applied sensibly. If a party to an inquiry or an objector seeks to bombard a minister with post-inquiry representations which are merely repetitive of the representations made at the inquiry itself and every time that happened the Minister was obliged to circulate the representations for comment, the decision-making process could easily be subverted. That is effectively what has happened in this case so far as the written correspondence and representations are concerned. In these circumstances the Minister has not “entertained” privately made representations; he has merely made his decision in the light of all the evidence given and representations made to the inspector which were known to all parties. Although it could be said that there was a technical breach of para 4 of the Guidance, there was no breach of the rules of natural justice, see Fox Land v SSCLG [2014] EWHC 15 (Admin) paras 22-5 per Blake J. No doubt that is the reason why Mr Pike concentrated on the fact that Mrs Leadsom had the advantage of face to face meetings with Mr Hopkins in the House of Commons tea room and the lobby. It is those occasions which are said to be unfair since Broadview had no comparable advantage.

  1. Para 4 of the Guidance draws no distinction between private representations made in writing and those made face to face and the same principle should therefore apply; if oral representations are merely repetitive of matters already ventilated at the inquiry, there should be no obligation to inform other parties of the contents of such representations and invite comments. But one has to pause, because any judge is acutely aware of the difference oral advocacy can make particularly if it occurs in the absence of the other side. Moreover in the case of written representations it is easy enough to assess whether they are merely repetitive of earlier representations whereas with oral representations one cannot be so sure. That is particularly so in cases like the present in which there is no evidence from the Minister himself but merely hearsay statements from two of his civil servants that Mr Hopkins told them he had no recollection of any meetings with Mrs Leadsom. In these circumstances it was not open to the Secretary of State to rely on rule 17(4) of the Rules and say that he disregarded Mrs Leadsom’s representations and Mr Kolinsky QC on behalf of the Secretary of State did not seek to do so.

  2. In these circumstances it is, in my judgment, incumbent on a Minister taking a planning decision to make clear to any person who tries to make oral representations to him that he cannot listen to them. He can add (if the inquiry has concluded) that anything such persons want to say can be put in writing and sent to the Planning Casework Division. Although such refusal to listen is not in terms mandated in the Guidance it is effectively the thinking behind paras 11 and 12 of that Guidance when those paragraphs say that those seeking to make representations should be advised to write to the relevant official in the Planning Casework Division if the inquiry has concluded and that it must be made clear that any representations “made by whatever means” can only be taken into account if they are also made available to interested parties for comment.

  3. Mrs Leadsom’s letter following the tea room conversation asserts that she made several points to Mr Hopkins and finishes by saying that she appreciates he cannot comment on individual applications. There is no evidence, however, that Mr Hopkins said he could not listen to what she was saying. For the reasons I have given he ought to have so said and, for my part, I would not endorse that part of the judge’s judgment in which he said that lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP with its implication that such lobbying was permissible even when the Minister is making a quasi-judicial decision in relation to a controversial planning application. MPs should not, with respect, be in any different position from other interested parties. Whether the failure of the Minister to say (politely) that he could not listen to what Mrs Leadsom had to say constitutes, on the facts of this case, a material breach of the rule of natural justice or gives rise to the appearance of bias is, of course, a somewhat different matter.”

Applying the principles to the facts, Longmore LJ said:

“30.      Once it is clear that the written representations added nothing to what had already been ventilated at the inquiry and there was nothing new that Broadview could say in response, Broadview is left with relying on the tea room and the lobby conversations. The question is whether the fact that Mr Hopkins did not state at the beginning of the conversation that it should not continue amounts to a material breach of the “audi alteram partem” principle. Here the chronology is important. The second (and relevant) inquiry took place between 8th and 24th October 2013; on 11th October 2013 during the inquiry the Secretary of State called in the application for determination by himself. The tea room conversation with Mr Hopkins took place shortly before 2nd December 2013 at a time when it was unlikely to have been decided whether it would be Mr Pickles or Mr Hopkins was to take the necessary decision and, in any event, well before the inspector made his report on 14th April 2014. There were then the additional consultations referred to above and it was not until 7th November 2014 that the Planning Casework Division in the Department (which, of course, had had no tea room, or other, conversation with Mrs Leadsom) sent its memorandum to Mr Hopkins recommending refusal of permission. It was thus at this stage (November 2014) that Mr Hopkins had to make up his mind on the application (as he did on 11th November 2014) nearly a year after the tea room conversation had taken place. In these circumstances I find it impossible to conclude that the tea room conversation played any part in his decision making process. The breach of natural justice in failing to cut off the conversation and letting the conversation continue in circumstances in which both parties knew that the Minister could not comment on individual applications is, at the most, a technical breach which cannot have made any difference to the ultimate decision.

…

  1. Nor do I think it arguable that a well informed observer would consider that there was a real possibility of bias on the part of Mr Hopkins. The well-informed observer would know that it was the responsibility of the relevant Minister to make difficult decisions about controversial projects such as on-shore wind farms. He would also know that sometimes such decisions are, as this one was, finely balanced. He would not think that a Minister’s decision in favour of a vocal body of local objectors supported by their local MP showed any bias against the promoter of the wind farm project. He would accept that the Minister had to make a decision one way or the other and think that the parties should accept the outcome.

  2. Nevertheless the accusation of bias made in this case shows how important the principle is that Ministers making planning decisions should not allow themselves to be lobbied by parties to the planning process or by local MPs. If they do allow it, accusations of bias are all too easily made however unjustified they may be once the proper principles exemplified by Magill v Porter [2002] 2 AC 357 are applied.”

Lewison LJ agreed, as did McCombe LJ, who added:

“41.      It seems to me that there was undoubtedly a breach of paragraph 4 of the Guidance by what appears to have occurred in the “tea room conversation” between Mr Hopkins and Ms Leadsom. On the facts of this case (in particular in the light of the chronology and the factors set out in paragraph 30 of my Lord’s judgment), however, this breach was not of sufficient moment to call for the quashing of the Secretary of State’s decision on the grounds of a breach of the principles of natural justice. Had the chronology been otherwise, and if the conversation had been more closely proximate in time to the decision taken, then it seems to me that the lawfulness of the decision might well have been in peril.

  1. I agree with what my Lord says in paragraph 28 as to the need for Ministers to eschew conversations such as the one in issue in this case when they are seised of quasi-judicial decisions of the present nature. For my part, I would hold that such conversations are clearly a contravention of the clear purpose of paragraph 4 of the Guidance, which needs to be construed broadly as opposed to rigidly, and a breach of ordinary principles of fairness in our law. If a Minister gives an opportunity to a developer to put to him a case in way that is not afforded to objectors and this can lead to a successful challenge to a subsequent decision (as envisaged in paragraph 4), such an opportunity given to an objector (including an MP) can equally lead to such a challenge.
  2. I would not wish to leave this case without stating my emphatic disagreement with the approach adopted by the judge in paragraphs 33 to 35 of his judgment. Constituency matters are one thing, but quasi-judicial decisions to be made by Ministers are another. Once a planning issue falls to be decided by a Minister, as part of the statutory planning appeal process, then representations by anyone (including an MP for the relevant constituency) can only take place lawfully in compliance with proper standards of fairness. One party should not be permitted to have access to the decision-maker in order to make representations in a manner not afforded to his opponent.

  3. I disagree, in the present context, with the judge’s statement in the final sentences of paragraph 35 when he says that lobbying of Ministers is part and parcel of the representative role of a constituency MP and that it would be wrong for a court to conclude that there was anything improper with it as a matter of law. The statements would be clearly correct in respect of “ordinary” constituency matters but, for my part, I consider that they are incorrect if applied to “lobbying” of a Minister when he is charged with making an appeal decision of the present character. Indeed, the Guidance issued by the Minister’s own Department, envisages correctly the risk of successful legal challenges to decisions if Ministers do not adhere to the ordinary principles of fairness and natural justice in the context of decision-making functions in planning cases.”

 

Hiring a Council Park

June 23rd, 2016 by James Goudie KC in Environment, Highways and Leisure

R (Friends of Finsbury Park) v Haringey LBC [2016] EWHC 1454 (Admin) was an unsuccessful application for judicial review to quash a decision of Haringey Council to hire Finsbury Park, which the Council owns, for a licensed music festival. Supperstone J observed (para 7) that the Park has played host to large scale events, including commercial concerts, attended by tens of thousands of people, for many years.

Supperstone J referred (paras 9-13) to the Council’s Events Policy, (paras 14-21) to the festival promoter’s Premises Licence, (paras 22-35) to the Council’s review following complaints about the event the previous year and consultation about the 2016 event.

There were four grounds of challenge. The most fundamental was to the Council’s vires. The statutory provisions upon which the Council relied included Section 145 (provision of entertainments) of the Local Government Act 1972. Supperstone J concluded (para 45) that Section 145, of itself and standing alone, provided the Council with the necessary power to permit the festival to take place in the Park.  The power included (para 47) closing the Park to members of the public, save for those who pay for admission, and closing the Park to the extent and for the time necessary to set up and take down the event infrastructure, and to hold the event safely for the benefit of those members of the public who wish to buy tickets to attend it.  Further (para 49) Section 145 does not state that its exercise is subject to any other enactment, or that it is to be read or qualified by any such enactment.  Section 44 of the Public Health Amendment Act 1890 is an additional power that the authority may rely upon should it so choose.

Supperstone J, applying well-settled principles, also dismissed a consultation challenge, on the basis of some of the information being allegedly “positively misleading” and the shortness (14 days) of the consultation period. The consultation was (para 60) adequate for its purpose. Moreover, Supperstone J added:

“61.      If, contrary to my view, there should have been more, or a longer period of, consultation, I consider, in the light of the consultation that there was this year and in previous years in relation to essentially the same event, it is highly likely that the outcome for the Claimant would not have been substantially different (Senior Courts Act 1981 s.31(2A)).”

Other challenges that were dismissed included that the Council had failed to deal with the application as a “key decision” and that the Council was in breach of other process requirements. The fact that the income the Council would earn would help the Council meet its Parks Budget did not mean that the decision was a key decision.  The decision was correctly designated as not being a key decision.  Nor was there any failure to record the decision or to make documents available.  Again, Supperstone J added:

“76.      I consider it highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred (s.31(2A) Senior Courts Act 1981). There was nothing in the decision or the report that would, in my view, have led to any further representations by the Claimant that would have made any substantial difference to the outcome.”

 

Asylum Seeking Children Age Assessments

June 22nd, 2016 by James Goudie KC in Judicial Control, Liability and Litigation

Whether an unaccompanied individual is a child for immigration purposes has to be determined by the Court as an issue of objective fact. It is not a matter of what an Immigration Officer reasonably believes: AA v SSHD and Wolverhampton City Council [2016] EWHC 1453 (Admin).

 

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