The Cabinet Office today published Procurement Policy Note 2, “Supplier relief due to COVID-19 Action Note”.

It says:-

All contracting authorities should: ● Urgently review their contract portfolio and inform suppliers who they believe are at risk that they will continue to be paid as normal (even if service delivery is disrupted or temporarily suspended) until at least the end of June. ● Put in place the most appropriate payment measures to support supplier cash flow; this might include a range of approaches such as forward ordering, payment in advance/prepayment, interim payments and payment on order (not receipt). ● If the contract involves payment by results then payment should be on the basis of previous invoices, for example the average monthly payment over the previous three months. ● To qualify, suppliers should agree to act on an open book basis and make cost data available to the contracting authority during this period. They should continue to pay employees and flow down funding to their subcontractors. ● Ensure invoices submitted by suppliers are paid immediately on receipt (reconciliation can take place in slower time) in order to maintain cash flow in the supply chain and protect jobs.

The policy is that LAs should provide liquidity to private enterprise, including payments in advance of contractual obligation.  This is made clearer still as the Note continues:-

“6. The current outbreak of COVID-19 is unprecedented and will have a significant impact on businesses of all sizes. Many suppliers to public bodies will struggle to meet their contractual obligations and this will put their financial viability, ability to retain staff and their supply chains at risk. Contracting authorities should act now to support suppliers at risk so they are better able to cope with the current crises and to resume normal service delivery and fulfil their contractual obligations when the outbreak is over.

7. It is vital that contracting authorities pay all suppliers as quickly as possible to maintain cash flow and protect jobs. Contracting authorities should also take action to continue to pay suppliers at risk due to COVID-19 on a continuity and retention basis. Contracting authorities can consider making advance payments to suppliers if necessary.”

Would such payments, in ordinary circumstances, be compliant with the quasi fiduciary obligation in Roberts v Hopwood?     The Government is saying this is not the time to be contractually squeamish: needs must.

A similar line of thinking about LAs as providers of liquidity to business is visible in two other initiatives of the Government, the Small Business Grant Fund and the Retail, Hospitality and Leisure Grant Fund, both to be channelled through LAs. The Government has said that it will reimburse LAs for these grants, and will also reimburse LAs’ grant administration costs pursuant to the New Burdens doctrine.   Meanwhile LAs will be out of pocket, as I understand it.

It will be interesting to see if further Government policies  in this crisis treat LAs as a means of effecting economic stabilisation – and longer term, whether this will kick-start LAs’ role as key players in the local economy.

Peter Oldham QC

One of the difficulties faced by LAs in dealing with Government Covid guidance is keeping track of it as it continues (unsurprisingly) to pour forth.  The following is a good starting point: https://www.gov.uk/guidance/coronavirus-covid-19-guidance-for-local-government.

However, it’s not intended to be a comprehensive set of guidance: for instance it does not deal with education. There is a collection of education guidance here:- https://www.gov.uk/government/collections/coronavirus-covid-19-guidance-for-schools-and-other-educational-settings.

A more general Covid collection of Government guidance is at https://www.gov.uk/government/latest?topical_events%5B%5D=coronavirus-covid-19-uk-government-response.

And of course sometimes Government guidance does not capture relevant material from other sources, for instance the European Commission’s Temporary Framework on State Aid, which you can find at https://eur-lex.europa.eu/legal-content/EN/TXT/uri=OJ%3AJOC_2020_091_I_0001.

The LGA has an extremely helpful collection of material at https://www.local.gov.uk/our-support/coronavirus-information-councils.

Parliamentary material on the Bill – and there is a great deal of it – is at https://services.parliament.uk/Bills/2019-21/coronavirus/documents.html.

While that includes some impact material, the Government’s overall Summary of Impacts document on the Bill is not on there, and that can be found at https://www.gov.uk/government/publications/coronavirus-bill-summary-of-impacts/coronavirus-bill-summary-of-impacts.  It is on a page headed Department of Health and Social Care, though it deals with provisions of the Bill generally and not just in relation to health and social care. It includes some important material.

Peter Oldham QC

The Coronavirus Bill, introduced into the House of Lords today, now has a cl 78 allowing the Secretary of State in England and Ministers in Wales to make regulations for LA meetings prior to 7th May 2021, including regulations for virtual attendance.

Cl 78 provides as follows – see cl 78(2) for regulations about virtual attendance:-

78 Local authority meetings

(1) The relevant national authority may by regulations make provision relating to—

(a) requirements to hold local authority meetings;

(b) the times at or by which, periods within which, or frequency with which, local authority meetings are to be held;

(c) the places at which local authority meetings are to be held;

(d) the manner in which persons may attend, speak at, vote in, or otherwise participate in, local authority meetings;

(e) public admission and access to local authority meetings;

(f) the places at which, and manner in which, documents relating to local authority meetings are to be open to inspection by, or otherwise available to, members of the public.

(2) The provision which may be made by virtue of subsection (1)(d) includes in particular provision for persons to attend, speak at, vote in, or otherwise participate in, local authority meetings without all of the persons, or without any of the persons, being together in the same place.

(3) The regulations may make provision only in relation to local authority meetings required to be held, or held, before 7 May 2021.

Peter Oldham QC

There is now a great deal of Government guidance, much of it informal as yet but clearly intended to be followed, and other Government material related to the Coronavirus Bill.  It is growing by the hour.   Here’s a collection of material that I’ve come across, under different headings: general, social care, housing and day centres, education, business rates and procurement.

The MHCLG twitter account is a useful source of information  – https://twitter.com/mhclg.

General

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

“Coronavirus Bill – Summary of Impacts” https://www.gov.uk/government/publications/coronavirus-bill-summary-of-impacts

“Guidance: what the Coronavirus Bill will do” https://www.gov.uk/government/publications/coronavirus-bill-what-it-will-do/what-the-coronavirus-bill-will-do

Explanatory notes to the Bill https://publications.parliament.uk/pa/bills/cbill/58-01/0122/en/20122en.pdf

Social care

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

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

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

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 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

Housing and day centres

COVID-19: guidance for hostel or day centre providers of services for people experiencing rough sleeping https://www.gov.uk/government/publications/covid-19-guidance-on-services-for-people-experiencing-rough-sleeping/covid-19-guidance-for-hostel-or-day-centre-providers-of-services-for-people-experiencing-rough-sleeping

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

Education

Guidance for schools, childcare providers, colleges and local authorities in England on maintaining educational provision https://www.gov.uk/government/publications/coronavirus-covid-19-maintaining-educational-provision/guidance-for-schools-colleges-and-local-authorities-on-maintaining-educational-provision

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

COVID-19: free school meals guidance for schoolshttps://www.gov.uk/government/publications/covid-19-free-school-meals-guidance/covid-19-free-school-meals-guidance-for-schools

Business rates

Business Rates Expanded Retail Discount 2020/21: Coronavirus Response – Local Authority Guidance https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/873622/Expanded_Retail_Discount_Guidance.pdf

Procurement

Procurement Policy Note – Responding to COVID-19

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/873521/PPN_01-20_-_Responding_to_COVID19.v5__1_.pdf

Peter Oldham QC

The right of attendance LA meetings in s 100A of the LGA 1972 is (subsection (8)) “without prejudice to any power of exclusion to suppress or prevent disorderly conduct or other misbehaviour at a meeting.”

Can LAs exclude the public because of the threat of passing on the coronavirus?  The right of attendance is an important part of local democracy, but I think the answer is probably yes.

The caselaw largely involves scuffles, protests (actual or threatened), and overcrowding.  But note the following in Lucas v Mason (1875) LR 10 Ex 251 (obiter, emphasis added):-

“It is no doubt the duty of the chairman of a meeting, where a large body of people are gathered together, to do his best to preserve order, and it is equally the duty of those who are acting as stewards or managers to assist him in so doing, but the nature and extent of this duty on both sides cannot be very closely defined a priori, and must necessarily arise out of, and in character and extent depend upon, the events and emergencies which may from time to time arise.”

In Doyle v Falconer (1866) LR 1 PC 328, the Privy Council referred obiter to the “right to remove for self-security”.

These are old cases but they have been referred to in modern authority:  R v Brent HA, ex parte Francis [1985] QB 869 and Laporte v Metropolitan Commissioner [2014] EWHC 3574 (QB).

My own view is that, given the Government’s policy of suppression of the disease through self-isolation and social distancing, a Court would probably decide that, as things stand, the threat of passing on the disease by attendance fell within the scope of s 100A(8), at least if the LA had made it clear that attendance was not allowed because of the pandemic.

That said, it would be good to get some guidance from MHCLG.  There is a deluge of guidance from the Government on COVID-19, growing by the hour, but I don’t think there is any guidance on this issue yet.

LAs excluding on this basis should ideally show that they have taken countervailing factors (e.g. Art 10) into account, and put in place measures to allow publicity through other means.

Peter Oldham QC