References to ECJ

April 2nd, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

Courts in the UK continue to be obliged to refer to the European Court of Justice cases involving unclear EU law. The Supreme Court made such a reference on 1 April 2020 in Zipvit v HMRC (2020) UKSC 15.

 

HMOs

April 2nd, 2020 by James Goudie QC in Housing

A local authority had been entitled to impose on the holder of a licence under a Selective Licensing Scheme pursuant to Section 90 of the Housing Act 2004 a condition requiring him to undergo a training course on how to manage tenancies. So held in Berg v Burnley BC (2020) UKUT 91 (LC).

 

Vicarious Liability

April 1st, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

The Supreme Court has unanimously allowed appeals in WM Morrisons Supermarkets v Various Claimants (2020) UKSC 12 and in Barclays Bank v Various Claimants (2020) UKSC 13. No vicarious liability in either case. The former concerned an employee, the latter an independent contractor. Vicarious liability applies to employees and near employees. It does not apply to classic independent contractors.

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Procurement

March 30th, 2020 by James Goudie QC in Decision making and Contracts

Procurement Policy Note 01/20 on Responding to COVID-19 has now been followed by Procurement Policy Note on Supplier Relief due to COVID-19.

 

Double Dutch

March 30th, 2020 by James Goudie QC in Decision making and Contracts

Case C- 344/18, ISS FACILITY SERVICES, in which the ECJ gave Judgment on 26 March 2020, concerned public buildings in Ghent, a public contract for cleaning services, and the transfer of that contract to multiple transferred. What happened to the rights and obligations arising from the contracts of employment with the transferor? Did they transfer only to the transferee for whom the worker will perform his or her principal tasks? “ No”, says the ECJ. Or will they transfer to each of the transferred, in proportion to the tasks performed by that worker?

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Modification of Public Contracts

March 30th, 2020 by James Goudie QC in Decision making and Contracts

The key questions raised by Joined Cases C-496/18 and C-497/18, HUNGOED, are (1) whether EU law permits reviews of modifications of public contracts to be initiated ex officio by public authorities, and (2) if so, whether such reviews can be initiated after the expiry of time limits in force at the time of the modifications. Advocate-General Bobek answers the 1st question : “ Yes “. EU law neither requires nor prevents ex officio reviews of (a) public contracts or (b) modifications of such contracts: paras 2, 68, 75 and 127. The Advocate-General answers the 2nd question : “ No “. The EU Principle of Legal Certainty bars national public authorities from initiating such reviews once the applicable time limit has already expired : paras 2, 77, 83-87, 94 and 127.

 

Freedom of Speech

March 27th, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

On ECHR Art 10, freedom of speech and expression, and the approach to limitations thereupon, see Divisional Court in R ( ANPO TVN ) v OFCOM (2020) EWHC 689 (Admin), at paras 41-63.

 

Vires

March 27th, 2020 by James Goudie QC in Local Authority Powers

Non-compliance with procurement legislation does not necessarily affect power to enter into contract : Wallis Trading Inc v Air Tanzania (2020) EWHC 339 (Comm) at para 107 per Butcher J.

 

Balancing Rights

March 27th, 2020 by James Goudie QC in Human Rights and Public Sector Equality Duty

In Re Al M (Reporting Restrictions) (2020) EWHC 702 (Fam), concerned with an application for anonymity made by a witness who gave evidence during the fact finding stage of proceedings concerning the welfare of two children, the President declined to resolve what he described as an apparent conflict of first instance authorities on the question whether it is appropriate to strike any balance with ECHR Art 10 rights when absolute Art 2 or Art 3 rights are engaged.

 

COVID-19 – list of Govt publications by date order and useful websites

March 26th, 2020 by Peter Oldham QC in General

The virus has led to the Government producing a great deal of information and guidance, of varying degrees of formality.  It is not easy to keep track of it all.

The following is a list of some useful websites covering this (and related) material, and then a list of material by publication date, followed by a weblink.   Please note that the list by date order will not be complete.  I will try to update it regularly.  Other documents of particular relevance may be included in the list (e.g. the European Commission’s Temporary State Aid Framework of 19th March).  Proposals for inclusion are very welcome – please contact peter.oldham@11kbw.com. The earlier versions of documents amended after 25th March are not shown.

USEFUL WEBSITES

For guidance aimed at local government

https://www.gov.uk/guidance/coronavirus-covid-19-guidance-for-local-government

For guidance for schools and educational settings

https://www.gov.uk/government/collections/coronavirus-covid-19-guidance-for-schools-and-other-educational-settings

For procurement

https://www.gov.uk/government/collections/procurement-policy-notes#2020

For Department of Health and Social Care

https://www.gov.uk/government/organisations/department-of-health-and-social-care

For Public Health England

https://www.gov.uk/government/publications/covid-19-stay-at-home-guidance and

https://www.gov.uk/government/organisations/public-health-england

For information about Universal Credit

https://www.understandinguniversalcredit.gov.uk/coronavirus/

For more general documentation from the Government about the crisis

https://www.gov.uk/government/latest?topical_events%5B%5D=coronavirus-covid-19-uk-government-response

For Parliamentary material on the Coronavirus Act 2020

https://services.parliament.uk/Bills/2019-21/coronavirus/documents.html

The Local Government Association has an extremely informative, broad and helpful collection of material at https://www.local.gov.uk/our-support/coronavirus-information-councils.  This includes a section at https://www.local.gov.uk/our-support/coronavirus-information-councils/covid-19-statutory-council-duties dealing with particular functions by alphabetical order.

 

PUBLICATION OF MATERIAL BY DATE ORDER

9th March

News story – Taskforce to bolster local response to coronavirus

https://www.gov.uk/government/news/taskforce-to-bolster-local-response-to-coronavirus

16th March

Press release – Robert Jenrick reaffirms support for councils in their coronavirus response

https://www.gov.uk/government/news/robert-jenrick-reaffirms-support-for-councils-in-their-coronavirus-response

17th March

Press release – £3.2 million emergency support for rough sleepers during coronavirus outbreak

https://www.gov.uk/government/news/3-2-million-emergency-support-for-rough-sleepers-during-coronavirus-outbreak

Press release – Government to grant permission for pubs and restaurants to operate as takeaways as part of coronavirus response

https://www.gov.uk/government/news/government-to-grant-permission-for-pubs-and-restaurants-to-operate-as-takeaways-as-part-of-coronavirus-response

18th March

Press release – Complete ban on evictions and additional protection for renters

https://www.gov.uk/government/news/complete-ban-on-evictions-and-additional-protection-for-renters

Procurement Policy Note 01/20: Responding to COVID-19

https://www.gov.uk/government/publications/procurement-policy-note-0120-responding-to-covid-19

19th March

EU Commission Temporary State Aid Framework

https://ec.europa.eu/commission/presscorner/detail/en/IP_20_496

Guidance – Responding to COVID-19: the ethical framework for adult social care

https://www.gov.uk/government/publications/covid-19-ethical-framework-for-adult-social-care/responding-to-covid-19-the-ethical-framework-for-adult-social-care

News story – £2.9 billion funding to strengthen care for the vulnerable

https://www.gov.uk/government/news/2-9-billion-funding-to-strengthen-care-for-the-vulnerable

Guidance – COVID-19: guidance on residential care provision

https://www.gov.uk/government/publications/covid-19-residential-care-supported-living-and-home-care-guidance/covid-19-guidance-on-residential-care-provision

Guidance – COVID-19: guidance for supported living provision

https://www.gov.uk/government/publications/covid-19-residential-care-supported-living-and-home-care-guidance/covid-19-guidance-for-supported-living-provision

Guidance – COVID-19: guidance on home care provision

https://www.gov.uk/government/publications/covid-19-residential-care-supported-living-and-home-care-guidance/covid-19-guidance-on-home-care-provision

Guidance – Coronavirus (COVID-19): maintaining educational provision

https://www.gov.uk/government/publications/coronavirus-covid-19-maintaining-educational-provision

Guidance – COVID-19: free school meals guidance

https://www.gov.uk/government/publications/covid-19-free-school-meals-guidance

20th March

Business Rates Nursery Discount 2020/21: Coronavirus Response – Local Authority Guidance

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/874284/Nursery_discount_guidance.pdf

Guidance – Closure of educational settings: information for parents and carers

https://www.gov.uk/government/publications/closure-of-educational-settings-information-for-parents-and-carers

Guidance – Coronavirus (COVID-19): cancellation of GCSEs, AS and A levels in 2020

https://www.gov.uk/government/publications/coronavirus-covid-19-cancellation-of-gcses-as-and-a-levels-in-2020

Guidance – Procurement Policy Note 02/20: Supplier relief due to COVID-19

https://www.gov.uk/government/publications/procurement-policy-note-0220-supplier-relief-due-to-covid-19

21st March

Press release – Major new measures to protect people at highest risk from coronavirus

https://www.gov.uk/government/news/major-new-measures-to-protect-people-at-highest-risk-from-coronavirus

Guidance – Coronavirus (COVID-19): guidance on isolation for residential educational settings

https://www.gov.uk/government/publications/coronavirus-covid-19-guidance-on-isolation-for-residential-educational-settings

22nd March

Guidance – COVID-19: school closures

23rd March

COVID-19: guidance on isolation for domestic abuse safe-accommodation settings

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/874568/COVID-19_-_guidance_on_isolation_for_domestic_abuse_safe-accommodation_settings.pdf

Press release – Extra protection for businesses with ban on evictions for commercial tenants who miss rent payments

https://www.gov.uk/government/news/extra-protection-for-businesses-with-ban-on-evictions-for-commercial-tenants-who-miss-rent-payments

Guidance – Coronavirus (COVID-19): maintaining further education provision

https://www.gov.uk/government/publications/coronavirus-covid-19-maintaining-further-education-provision

Guidance – Coronavirus (COVID-19): apprenticeship programme response

https://www.gov.uk/government/publications/coronavirus-covid-19-apprenticeship-programme-response

Correspondence – Coronavirus (COVID-19): letter from the Minister of State for Care to recruitment agencies

https://www.gov.uk/government/publications/coronavirus-covid-19-letter-from-the-minister-of-state-for-care-to-recruitment-agencies

24th March

COVID-19 outbreak – councillor guidance

https://www.local.gov.uk/covid-19-outbreak-councillor-guidance

Council Tax COVID-19 hardship fund 2020-21 – Local Authority Guidance

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/874867/COVID-19_Council_Tax_Hardship_Fund_Guidance.pdf

COVID-19 advice for accommodation providers

https://www.gov.uk/guidance/covid-19-advice-for-accommodation-providers

Guidance – Coronavirus (COVID-19): implementing social distancing in education and childcare settings

https://www.gov.uk/government/publications/coronavirus-covid-19-implementing-social-distancing-in-education-and-childcare-settings

Guidance

Guidance on shielding and protecting people defined on medical grounds as extremely vulnerable from COVID-19

https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19

Guidance – COVID-19: support for businesses

https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19/covid-19-support-for-businesses

25th March

Grant Funding Schemes Small Business Grant Fund and Retail, Hospitality and Leisure Grant Fund Guidance Version 2 (new para 17)

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/875348/small-business-grant-fund-and-retail-guidance-v2.pdf

Business Rates Expanded Retail Discount 2020/21: Coronavirus Response – Local Authority Guidance (updated to include formerly excluded, but forced to close)

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/875613/Expanded_Retail_Discount_Guidance_25.03.20.doc.pdf

COVID-19: guidance for hostel or day centre providers of services for people experiencing rough sleeping

https://www.gov.uk/government/news/3-2-million-emergency-support-for-rough-sleepers-during-coronavirus-outbreak

Coronavirus (COVID-19) – Planning Inspectorate guidance – updated 25th March 2020 (cancellation of Planning Inspectorate’s site visits)

https://www.gov.uk/guidance/coronavirus-covid-19-planning-inspectorate-guidance

Note the helpful collection of planning material on the same page

Guidance – Further businesses and premises to close: guidance and designation letter under the Health Protection etc Regs 2020

https://www.gov.uk/government/publications/further-businesses-and-premises-to-close/further-businesses-and-premises-to-close-guidance

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/875104/DH_SOS_Designation_Letter.pdf

Guidance – Coronavirus (COVID-19): early years and childcare closures

https://www.gov.uk/government/publications/coronavirus-covid-19-early-years-and-childcare-closures/coronavirus-covid-19-early-years-and-childcare-closures

Guidance – COVID-19: guidance for educational settings

https://www.gov.uk/government/publications/guidance-to-educational-settings-about-covid-19

Guidance – Coronavirus (COVID-19): guidance on vulnerable children and young people

https://www.gov.uk/government/publications/coronavirus-covid-19-guidance-on-vulnerable-children-and-young-people

Guidance – Coronavirus (COVID-19): travel advice for educational settings

https://www.gov.uk/government/publications/coronavirus-covid-19-travel-advice-for-educational-settings

Peter Oldham QC