EM LawShare

9 July 2015

Local Government Update

Structure and who does what . Outsourcing, shared services and ABSs . Health and social care . Local Audit and Accountability Act 2014 . Pension scheme administration . Devolution and combined authorities

Powers, allocation of functions and delegation . The Welsh Auditor . Delegation to officers - Pemberton International Ltd v LB Lambeth . Delegation to committee - Bridgerow Ltd v Cheshire West and Chester . Substitution - Carnegie v LB Ealing . Liability for contractors’ negligence - NA v Nottinghamshire CC . Consultation on new functions and responsibilities regulations

Procedure . The Openness of Local Government Bodies Regulations 2014 – questions, answers and unanswered questions . Parish councils . Petitions on yellow lines and parking charges . New RIPA Codes of Practice . Data sharing law and new FOIA exemption

Transparency and interference . Transparency . Freedom of Information - Innes v Information Commissioner and Buckinghamshire CC . Environmental information - East Sussex County Council v Information Commissioner . Background papers - Joicey v Northumberland CC . Intervention, Tower Hamlets, Rotherham and others - London Borough of Tower Hamlets v SoS . Statutory officers’ protection and exit payment clawback . Publicity Code enforcement . Best Value Guidance

Ethical conduct . More of the same, and a prosecution . Freedom of speech and member misconduct - Heesom v The Public Service Ombudsman for Wales . Councillor Flower achieves a first

Litigation . Judicial review reforms

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. Local authority participation in judicial review R (on the application of Midcounties Co-operative Ltd) v Forest of Dean District Council and another Public Sector Equality Duty case law R (on the application of Hardy) v Sandwell Metropolitan Borough Council R (on the application of Cushnie) v Secretary of State for Health R (on the application of Essex County Council) v Secretary of State for Education R (on the application of Rotherham Metropolitan Borough Council) v Secretary of State for Business, Innovation and Skills R (on the application of Robson and another) v Salford City Council R (on the application of Karia) v Leicester City Council Blake v Waltham Forest LBC . Bias Bishop's Stortford Civic Federation v East Hertfordshire District Council BDW Trading Limited v Cheshire West & Chester Borough Council Predetermination IM Properties Development Ltd v Lichfield District Council . Relevant Considerations R (on the application of Nestwood Homes) v South Holland District Council R (on the application of McClellan v London Borough of Lambeth R (on the application of Sky Blue Sports & Leisure Ltd) v Coventry City Council . Defamation Meadows Care Limited and Pathfinders Childcare Limited v Colin Lambert and Rochdale MBC Thompson v James . Consultation Draper v Lincolnshire County Council R (on the application of United Company Rusal plc v The London Metal Exchange R (on the application of Winder & Others v Sandwell MBC R (on the application of Moseley v Haringey London Borough Council R (on the application of LH) v Shropshire Council R (on the application of Regas) v Enfield London Borough Council R (on the application of McCann( v Bridgend County Borough Council R (on the application of Robson and another) v Salford City Council R (on the application of T) v Trafford Metropolitan Borough Council R (on the application of Morris and another v Rhondda Cynon Taff County Borough Council R (on the application of West and others) v Rhondda Cynon Taff County Borough Council

. Miscellaneous R (on the application of Maries) v Merton London Borough Council R (on the application of Project Management Institute) v Minister for the Cabinet Office and others R (on the application of Keep Streets Live Campaign Ltd) v Camden London Borough Council Williams v Patrick R (on the application of Reverend Nicolson v Tottenham Magistrates

Legislation . Children and Families Act 2014 . Anti-social Behaviour, Crime and Policing Act 2014 . Care Act 2014 . Consumer Rights Act 2015

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. Criminal Justice and Courts Act 2015 . Deregulation Act 2015 . Infrastructure Act 2015 . Recall of MPs Act 2015 . Small Business, Enterprise and Employment Act 2015 . Modern Slavery Act 2015 . Local Government (Religious etc. Observances) Act 2015 . Local Government (Review of Decisions) Act 2015 . Self-build and Custom Housebuilding Act 2015 . Charities (Protection and Social Investment) Bill . Childcare Bill . Cities and Local Government Devolution Bill . Council Tax Valuation Bands Bill . Education and Adoption Bill . Planning (Subterranean Development) Bill . Procurement law

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Structure and who does what

Outsourcing, shared services and ABSs

The DCLG/Grant Thornton December 2014 guidance on Good Practice in local Government Savings includes a “spectrum of ambition and complexity”. It states: “At the core of the spectrum is an increasing reliance on major service re-design and approaches such as demand management, prevention and early intervention. This is enabling a shift from traditional savings to transformational reform. This in return requires a shift from seeking savings in a single service to a wider, more collaborative approach. At the same time, and as part of this development, councils are increasingly focussing their attention in relation to savings on adult social care and children’s services. Our work also suggests that the speed at which councils are moving across the spectrum is increasing and that the further along the spectrum they move, the greater the potential to achieve ‘better for less’.” And “Shared services and collaboration with other councils is a far more significant approach for securing savings for districts than it is for other types of council. Improved contracting is also significant.”

According to the Arvato UK Outsourcing Index, 2014 showed a 15% increase in the average value of local government outsourcing contracts.

Some recent events have demonstrated that shared services are not necessarily risk free.

The London Borough of Barnet was hauled over the coals for failing to recalculate the political balance within its committees after the election. The shared legal service with Harrow meant that no lawyers were based in Barnet, and although it was consulted on the report to annual Council, it did not respond in time and this was not considered important. Salford’s internal auditors said that the failure to treat a deal with a local rugby league club as a “key decision”, inappropriately signed off by a service director who was also the council’s monitoring officer following a shared legal services arrangement with Manchester City Council, may not have happened if the monitoring officer had been a lawyer.

If shared services produce cost savings because there are fewer lawyers, and they are more distant from the decision-making process, the risks are obvious and need to be understood and mitigated.

Meanwhile, The ‘Connecting Northern Lincolnshire’ project, which will see North Lincolnshire and North East Lincolnshire councils share their human resource, finance and IT functions as well as legal services, is to receive £1.9m from the Transformation Challenge fund, and the South London Partnership – comprising Merton, Richmond, Kingston and Sutton councils – will receive £3m to “build on the successes of joint working…including the four-borough legal service and Richmond and Kingston’s jointly-owned Community Interest Company, and Achieving for Children”.

The trend for shared legal services is continuing with Surrey and East Sussex announcing in March plans to share a range of services including legal. Lewes and Eastbourne Councils have developed a shared legal service as have Taunton Deane, Mendip and West Somerset Councils.

Outsourcing means more work for lawyers, both in procurement and in unscrambling failing arrangements. It is also perceived as a threat to the client base of the in-house team. The basis for this perception is unclear. If planning support, for example, is outsourced, it does not necessarily

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follow that the contractor can choose who provides legal advice and assistance on planning matters. The client, surely, is still the council? But it does create a context where the assumption that the in- house legal team will cover the authority’s legal work will be challenged, so there is good reason for concern, albeit perhaps less of an imperative than some Heads of Legal may think.

The fashionable response is establishing a local authority legal alternative business structure (ABS) in the form of a wholly owned company providing legal services to the council and others. The legal team is TUPE transferred or seconded to the ABS and it contracts with the council for the provision of services. The nature of the relationship means that the Teckal principle applies and there is no need for competitive procurement.

Buckinghamshire Law + Limited (Buckinghamshire County Council and Buckinghamshire and Milton Keynes Fire Authority), LGSS (the shared service venture between Cambridgeshire and Northamptonshire county councils) and HB Public Law (Harrow and Barnet LBCs) have all received ABS licences. Lambeth LBC is also said to be applying for two licences. Hugh Peart the Director for Governance and Legal Services at Harrow LBC has been appointed as the Head of Legal Services for Buckinghamshire County Council and will carry out both roles.

The advantages of an ABS are: . It can set out to make a profit by operating “for a commercial purpose” under the Local Government Act 2003 s95 and the Localism Act 2011 s4. . It can act for a wider range of potential clients than a pure in-house team. In-house solicitors can only work for certain people. There is a special list for local authorities, under the Local Authorities (Goods and Services) Act 1970. Their solicitors cannot work for a company unless the authority is connected with it. Other rules prevent the provision of some kinds of conveyancing and advocacy work to “the public or sections of the public”. . It is an effective way of ensuring an efficient, productive and commercial ethos. . It meets the political objectives of those authorities that are committed to large-scale outsourcing.

The disadvantages are: . The time and effort required to satisfy the Solicitors Regulatory Authority in order to obtain an ABS licence. . The need for separate insurance cover and the regulatory and accounting mechanisms needed to operate as a private law firm. . The need for the company to at least cover its costs, without subsidy from the council which could infringe the rules on state aid. . The personal risk for the responsible officers if the regulatory mechanisms fail. . The unsettling staff transfer processes. . The additional costs of all this, and the potential liability for corporation tax and VAT. . The risk that the ambition of increasing income by working for a range of other clients is not achieved in a highly competitive market.

There are variations. We understand that HB Public Law intend to use their ABS as a bolt-on, to cover certain kinds of legal work rather than everything that they do. There is scope for private sector input, to handle work which is outside the capability or capacity of the ABS and to provide marketing and commercial know-how). Kent proposes to take this a step further. Their ABS will be a joint venture with a private sector firm. Whilst the JV model can work well as a method of outsourcing, offering a great deal more focus and engagement than a contractual relationship, it remains to be seen whether Kent and their partner can float a business with sufficient income to cover all the additional costs,

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reduce Kent’s overall legal bill and provide an adequate income stream for their partner, who will be expected to make a significant investment in the business. Despite the fact the OJEU notice for the Kent procurement was published in October 2014 at the time of writing there is no news on the appointment of a preferred bidder.

It may be that the decline of the inhouse local authority legal team has been exaggerated. The Law Society has indicated that the number of in house solicitors in local government increased by 4% in the year to 31 July 2014, in figures released in April 2015. And in March 2015 in their report Commercial Councils: The rise of entrepreneurialism in local government the influential think tank Localis suggested that legal services was likely to be a future boom area.

Health and Social Care

Section 3 of the Care Act 2014 imposes a duty on local authorities to promote the integration of care and support provision with health provision. Demographic changes mean that we will not be able to cope with the demands placed on the NHS and local authorities for much longer without an increase in funding or a reduction in demand. If public spending has to be contained, demand management is the only answer. And in real life, if you are elderly, with complex and deteriorating health and care problems, you will not much care whether your needs are medical or social, how the country organises itself to try to meet them, or where the money is coming from. The astonishingly intricate bureaucracy that underpins the strange mix of people that look after you is a problem, not a solution. So we came to integrated care.

We have been fiddling with integration for decades, but the practice has been patchy, and the pilots inconclusive. In January 2013, Labour started talking about “whole person care”. The Government found this a bit tricky. It was hard to admit that the reorganisation of the NHS left work still to be done. In October 2012 Health Minister Jeremy Hunt said "In my first month as health secretary the word I've heard uttered more than every other is 'integration'. I believe that the new structures will lead and create opportunities for integration like we've never had before." But the June 2013 spending round announced a £3.8 billion fund, now called the Better Care Fund: “a single pooled budget for health and social care services to work more closely together in local areas, based on a plan agreed between the NHS and local authorities”. Alongside the Fund, 14 pioneers have been testing different ways and means.

To access the fund, each NHS commissioning group (CCG) had to include a discrete element within its annual strategic and operational plan. This must show what they and the local authority will do with the funding, who was involved in drawing up the plan, and the measurable outcomes against which their performance will be judged. £1bn was to be paid on a “payment for performance” basis. The plan must meet six conditions. It must be agreed with the local authority. Adult social services must be protected. It must deliver seven-day services to support patients discharged from hospital, and prevent unnecessary admissions at weekends. There must be better data sharing. There must be jointly arranged assessment and care planning for individuals, and a single accountable professional. The consequential impact on hospitals and the acute health sector must be agreed. Plans have to be signed off by local Health and Well Being Boards.

But the money comes from existing budgets, including £1.9 billion from NHS hospital budgets, and that was where the trouble began. There was a well-judged outcry from the health lobby, complaining that “there is a fear that the labels be taken off the money and that it will be used for filling in potholes and other significant things” and that there was no guarantee that cost savings would be delivered 6

especially at the outset. The Better Care Fund was recalibrated, to dampen the performance-related element and protect hospital budgets, and all the bids had to be resubmitted. Five “fast track” areas submitted plans in August, the rest in September. Almost all of them were approved, but in November, a National Audit Office report said that the process could have been better planned, that initial expectations for savings were unrealistic, and that it would be a struggle to implement the plans from April 2015. Labour MP Margaret Hodge, chair of the Committee of Public Accounts said she was “dismayed that planning for the Better Care Fund has been such a shambles.” The Department of Health said it disagreed with the report.

Why is this so hard? There are some structural reasons, which so far have not really been addressed. . The NHS and local government are different organisations, with different lines of accountability, different kinds of people and different ways of working. However willing they may be, it is difficult for them to work together. Integration, even on this massive scale, is built on very flimsy foundations. Very few CCGs include local authority representatives, and they are packed with health professionals. Local authority cabinets comprise local councillors. Local authority health scrutiny committees review and recommend, but cannot take decisions. . The two sectors come together in Health and Wellbeing Boards. They have a statutory duty to encourage integration. They carry out strategic needs assessments, agree health and wellbeing strategies and comment on CCG commissioning plans. The local authority may delegate functions to them. But they are new, operate at a strategic level, and do not generally deliver or commission services, take hard decisions or hold substantial budgets. So there is no joint body to administer a pooled budget and deliver the integrated care that will release the savings. . In reality, integrated working depends on contractual arrangements under section 75 of the National Health Services Act 2006, whereby health bodies delegate functions to local authorities, or the other way round. The nexus between these agreements and the two Government Departments is extraordinarily distant. No one is going to propose further structural change. . The options for creation of new entities to deliver integrated services are limited following the Health and Social Care Act 2012 and new structures are less likely to be used for the delivery of integrated health and social care. However, local authorities are looking to develop new entities to act as providers of services and it is unclear whether authorities and health trusts will be looking to develop new jointly owned entities to operate integrated arrangements. October 2014 statutory guidance on the Care Act just recommends pooled budgets, joint commissioning and “integrated management or provision of services” and “cooperation”. . The respective obligations for local authorities and NHS bodies to consult those affected, and each other, on proposed changes in provision are complex and demanding. . New ways of working are likely to mean moving people around, requiring staff transfer or secondment and potentially giving rise to equal pay issues. . NHS and social care professionals work to different rules and guidance, are regulated in different ways, and have to apply different statutory criteria. The statutory guidance reflects these fault lines without attempting too hard to bridge them. . The governance requirements for NHS bodies are much less intrusive and exacting than those for local government.

The better care fund is now up and running. All plans were approved with three areas receiving additional support. NHS England has also announced 29 “vanguard” sites which will develop new models of integrated care which can be replicated across the country.

On a more day-to-day level, two 2014 publications are a helpful addition to the available guidance for local authorities on working within the new health system.

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. The Department of Health Guidance “Local Authority Health Scrutiny” issued in June 2014 covers the 2013 Regulations and explains in some detail the new responsibilities and the statutory consultation processes. . In October 2014 the LGA and ADSO published “Making an impact through good governance - A practical guide for health and wellbeing boards”.

Local Audit and Accountability Act 2014

The Local Audit and Accountability Act 2014 has now become law. In outline, the Act abolishes the Audit Commission and establishes new arrangements for the audit and accountability of local public bodies ('relevant authorities') in England. The Audit Commission ceased to exist in April 2015. Its functions and staff have been reallocated. It also amended the legislative framework for council tax referendum, provides for measures to ensure local authority compliance with the Code of Recommended Practice on Local Authority, enabled changes to the Access to Information Regulations to permit filming and recording of all kinds of local authority meetings and reforms the legislation about parish polls.

The new regime went live on the 1 April 2015. For principal local authorities, the key elements are as follows.

The duty to appoint a “local auditor”: . Local authorities must appoint one – or more – local auditors. In so doing they must consult their auditor panel (see below). They must give public notice of the appointment within 28 days. This is a full Council decision. . Under the Local Audit (Auditor Resignation and Removal) Regulations 2014/1710 they may remove a local auditor from office, following a prescribed procedure including consulting the panel and giving the auditor a right to speak at the full Council meeting when the decision is made, publishing everything and giving the auditor the right to make a further statement. There is then a notification process and the authority must appoint a new local auditor within three months, with default powers for the SoS. If an auditor resigns, the panel must be invited to comment and its statement must be published. . Local auditors have the same functions and powers as external auditors under the old legislation. . They must meet a whole string of eligibility criteria (see the Local Audit (Professional Qualifications and Major Local Audit) Regulations 2014/1627), and are subject to a regulatory framework, similar to that which applies under company law, supervised by the Financial Reporting Council under the Local Audit (Delegation of Functions) and Statutory Audit (Delegation of Functions) Order 2014/2009.

The duty to establish an “auditor panel”: . This can be a joint panel and may in theory be an existing committee (but see below). It must consist of a majority of, or wholly of, independent members, and have an independent chair. . Following changes made by the Local Audit (Auditor Panel Independence) Regulations 2014/2845, you are “independent” if o you have not been a member or officer of an authority, or of any authority or entity “connected with” it (there is an accountancy based definition) in the last five years; o you are not a relative or close friend of a member or officer of the authority or a connected authority or entity when you are appointed (it seems, though, that you can have been the Leader of the Council’s best friend a week before you were appointed, so long as you have since fallen out, and you can marry the Director of Finance the day after); 8

o You are not the elected mayor; o Neither you, nor any body in which you have an interest (as a partner or director, or though a shareholding or the like), has entered into a contract for goods, services or works with the authority which is not fully discharged; o You are not (and you have not in the last five years been employed by, a partner in or a director of) a current or prospective auditor of the authority. . The panel is not a council committee, even if it has been created from one (unlikely, with all those independent members) so local authorities will still need audit committees or some such body. Under the Local Audit (Auditor Panel) Regulations 2014/3224 most of the Access to Information provisions of the Local Government Act 1972 that apply to committees will apply to the Panel, and the Councillor membership must be politically balanced. . The panel must be consulted on the appointment, removal or resignation of an auditor. . The panel must advise “on the maintenance of an independent relationship with the local auditor appointed to audit its accounts” and on the selection and appointment of a local auditor. It may advise when asked or if it has not been asked. It may also advise on any proposal by the authority to enter into a “liability limitation agreement”, but only if it has been asked (see below). It must publish the advice, although it must exclude information whose disclosure would prejudice commercial confidentiality, unless there is an overriding public interest in favour of its disclosure. In those authorities where there are real concerns about the independence, viability or performance of the local auditor this new formula is likely to be tested quite severely. . Under the Local Audit (Auditor Panel) Regulations 2014/3224 the panel must advise on purchasing non-audit services from the auditor, and be consulted on any policy for such matters. . Auditor panels have power to require the production of documents and information, and to compel officers and members to attend before them. . Under the Local Audit (Auditor Panel) Regulations 2014/3224, appointing the panel is a full Council function. There must be at least three members. Vacancies must be advertised and applied for. A member who becomes disqualified must be removed and replaced. Councillor members must cease to be panel members if disqualified as councillors. It can settle its own rules of procedure but the quorum must be at least three and the majority of members present must be independent.

Liability limitation agreements: These are agreements which “purport to limit the amount of a liability owed to a relevant authority by its local auditor in respect of any negligence, default, breach of duty or breach of trust”. The Local Audit (Liability Limitation Agreements) Regulations 2014/1628 limit the duration of an agreement so that it cannot cover more than the financial year or years to which the appointment of the local auditor relates, and prevent the agreement from limiting the local auditor's liability to less than such amount as is fair and reasonable in all the circumstances of the case.

Collective procurement: A late amendment to the Bill permits large-scale collective auditor appointments. The SoS will nominate a body as the “specified person” to procure auditors for up to five years. Authorities will be able to opt in to this process by a full Council resolution. If they do so, they need not establish a panel. The specified person will also publish fee scales, monitor performance, resolve disputes and dismiss and replace auditors if necessary. The LGA has formed The Public Sector Audit Appointments Company to discharge the functions and transitional arrangements passed to it from the Audit Commission, and also presumably for this purpose.

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From 2017/18 most authorities will have to prepare and publish the statement of accounts by 31 July instead of the end of September. The period for public inspection, not less than 30 days, will have to include a “common period” across all authorities of 10 days.

Guidance In March 2015 the National Audit Office published a new Code of Audit Practice and a guide to the public rights to inspect and challenge council accounts, Council Accounts: A guide to your rights..

Devolution and Combined Authorities

Devolution is a hot topic at the moment, and could provide significant opportunities for local government. Let us look at some of the history, and what might happen next.

First, we will look at regional government in England. The 1997 Labour government had a bash at devolution. In 1998 and 1999 it created not only the Scottish and Welsh Assemblies, but also nine Regional Development Agencies in England, charged with developing regional economic development strategies and distributing government and European funding. The RDAs were quangos, made up of representatives of business, local government, trade unions and voluntary organisations, appointed by central government. Each RDA was supported by a Regional Chamber, later styled a Regional Assembly, a wholly non-statutory body focussing on the strategy, and a regional Government Office. Two thirds of the Assembly members were nominated by the local authorities in the region, one third by regional organisations. An attempt to place these on a statutory basis, creating a directly elected intermediate tier of government responsible for the RDAs, training and skills, housing, planning and transport, fire and rescue, culture, the environment and sustainability, collapsed in ruins. It was opposed as a waste of money, two of the three referendums planned to bring the new bodies into existence were dropped, and the third, in the North East in 2004, overwhelmingly rejected the proposal.

The Local Democracy, Economic Development and Construction Act 2009 contained a new system. The Regional Assemblies were abolished and their functions fell back to the RDAs, whose remit was widened to include town and country spatial planning. The RDAs were replaced by Leaders Boards, whose composition was as the title suggests. There was scrutiny by Regional Parliamentary Committees. This did not last very long. The Coalition Government abolished the whole thing: RDAs, regional Government Offices, regional strategies, Leaders Boards, Parliamentary Committees and all the associated funding streams. Ghost Leaders Boards remain, as informal Local Government Association sounding boards with a variety of titles.

Next, the idea of the “city region”: the seminal 1972 local government reforms produced the two-tier system of counties and districts, but also created metropolitan county councils in Greater Manchester, Merseyside, Tyne & Wear, West Yorkshire, South Yorkshire and West Midlands, based on the London County Council, which had been around since 1889 and became the Greater London Council in 1963. These county councils were abolished in 1985, on the grounds of efficiency, although many saw this as a purely political move, and the metropolitan districts, including the central “City Council” in each area, became unitary authorities. They have muddled through on this basis ever since, with varying degrees of formal and informal cooperation between the districts (the GLC and the Greater Manchester Authority, in particular, never really went away). Newly created Urban Development Corporations – quangos with planning and land development powers – stepped out of their shadows and promoted huge regeneration schemes. They were criticised as out of touch with local people, and the perceived need to bear down on public sector capital spending meant that they withered on the vine in favour of 10

market-led regeneration. That left a gap at the “city region” level, although city challenge policies in the 1990s encouraged partnership working to tap into government funding for regeneration projects.

The 1985 changes also spawned joint authorities in the old metropolitan county council areas, responsible for the police, fire and rescue, civil defence and transport, and similar authorities in some areas covering waste disposal and a few other functions. Most of these have wandered off down new legislative trails: police and crime commissioners (PCCs) and fire and rescue authorities, for example. In Manchester, Merseyside, the West Midlands, South Yorkshire, West Yorkshire and Tyne and Wear transport – trains, buses, trams and so on – is organised and run (in so far as it has not been privatised) by Passenger Transport Executives and Integrated Transport Authorities (ITAs), some of which have now become Combined Authorities, as we will see.

The 2009 Act gave top and single tier local authorities a new duty to prepare an assessment of economic conditions in the area. It made it possible for the Secretary of State to create new bodies involving two or more adjacent authorities: Economic Prosperity Boards (EPBs) to promote economic development and regeneration, and Combined Authorities (CAs) to do what EPBs do, plus the transport functions of the Integrated Transport Authorities. EPBs and CAs survived the Coalition Government cull of regional government. EPBs have not yet found favour locally, but there are new CAs in Greater Manchester, Merseyside, Leeds and Sheffield. Their remit is limited, but important, and they are usually perceived locally as true city-region authorities.

Also under the 2009 Act, the Local Area Agreement “cash and powers for meeting targets” deals were broadened to provide a statutory basis for multi-authority “Multi-Area Agreements” or MAAs. MAAs were abolished by the Coalition Government, but “City Deals” emerged in their place. The first wave covered the eight largest “core” cities, centred on Birmingham, Bristol, Manchester, Leeds, Liverpool, Nottingham, Newcastle and Sheffield. Each deal is different, but key features include “earn back” (new funding based on actual growth) and tax increment financing (borrowing against anticipated increases in business rate income), pooled “economic investment funds” and a “local venture capital fund”, business growth hubs, new funding models for training and skills, devolved responsibility for rail franchising, devolved transport funding, local asset management and investment programmes, broadband development projects and low carbon programmes. Bristol and Liverpool acquired elected mayors, although their writ only runs in the City Councils, not across the city region. The second wave involved 20 more cities, and individual deals have agreed with 15 of them, giving some kind of official recognition to areas like “Greater Brighton” and “the Black Country”.

So regional government has, in effect, been sliced up into a messy, city-based sub-regional mix of partnership working, CAs and City Deals. Likewise, the public/private relationship inherent within RDAs and Regional Assemblies has reappeared at the sub-regional level, with the creation of Local Economic Partnerships (LEPs). These are non-statutory bodies charged with economic development planning, working in practice through the local authorities and CAs in their areas. Their members and board members are self-selected, subject to Government approval, with a majority representing local businesses. There are 39 LEPs, some of which overlap, covering the whole of the country – and therefore operating in the shire counties as well as the cities. Initially their purpose was unclear, and their resources limited, and they felt like talking-shops. However, boosted by a hard-hitting 2012 report called “No Stone Unturned” by Conservative grandee Michael Heseltine, a long standing proponent of regional development, LEPs now control substantial funds, including EU funding and a slice of the Local Growth Fund, doled out to LEPs through a competitive bidding process through “Growth Deals” for individual projects and initiatives similar in flavour to the “City Deal” packages. The second wave has just been announced.

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One of the Heseltine recommendations was to amend the 2009 Act to free up the criteria for EPBs and CAs. In April 2014 the Government published a consultation paper inviting views on four proposals: to allow non-contiguous authorities to form EPBs and CAs, to enable county councils to become members with respect to only part of the county, to enable them to do different things in different parts of their areas, to simplify the process for making governance changes, and to ensure that they all have an overview and scrutiny committee. In December 2014 it began consultation on a proposed Legislative Reform Order to amend the Local Democracy, Economic Development and Construction Act 2009 so that: . Non-contiguous authorities could be part of an EPB or CA, and an EPB or CA could “doughnut” an non-participating authority, if the participating authorities and the SoS think that the proposed area would be an appropriate functional economic area, over which collaboration on the body’s functions would promote economic growth, and the SoS has regard to the impact on surrounding areas. . If only part of a county council’s area is to be included in the combined authority, the county council will be allowed to delegate transport functions for that part to the CA. . The requirement that where a CA or EPB wishes to change its constitution, function or funding, it must undertake a review and publish a scheme is removed.

The outcome of that consultation was published in March 2015 together with the draft Legislative Reform (Combined Authorities and Economic Prosperity Boards) (England) Order 2015 (“the draft Order”). The Order is not yet in force but when it is it will amend the Act to enable more flexibility in establishing CA’s. The Secretary of State will be able to approve the establishment of a CA even if:

. part of the area is separated from the rest of it by one or more local government areas that are not part of the area of the CA and/or . a local government area which is not part of the CA area is surrounded by the CA area

so long as the constituent councils of the proposed CA can “collaborate effectively in the exercise of statutory functions relating to economic development, regeneration and transport, for the purpose of promoting economic growth and administrative efficiency in the area.”

This is linked with a steady upsurge of self-assertiveness by County Councils. Those that are not unitaries are seeking to collaborate with districts, and a few are sniffing around the idea of more restructuring. All see economic development, growth and inward investment as a major priority. Derbyshire has just won approval for the first non-metropolitan CA. The counties envy the City Deals. The County Councils Network “Plan for Government 2015 – 2020” proposes “a radical English Devolution settlement for the County and City Regions of England.”

By the end of the 1990s a new idea was gaining currency – the elected mayor. London went first, with the creation of the Mayor for London, the Greater London Assembly and the family of related London- wide bodies in 1999. The Local Government Act 2000 provided the elected mayor and cabinet form of governance, and, with the application of a series of financial carrots and legislative sticks, there are now 14 elected mayors, including those in Bristol, Salford and Liverpool. This is only 4% of the local authorities in England, but the principle still fascinates national politicians and will not go away.

In June, George Osborne made a speech in Manchester about his vision of a “Northern Powerhouse”, a collection of cities with radically improved transport links, and a “serious devolution of powers and budgets” but only to “any city that wants to move to a new model of city government - and have an

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elected Mayor”. The Greater Manchester CA has signed up to the concept. The directly elected Mayor of Greater Manchester will have a devolved transport budget, responsibility for franchised bus services, powers over strategic spatial planning, a new housing investment fund, a new earn back deal, and the role of the PCC. The Greater Manchester CA will have devolved business support budgets, further education and training powers, funding for the “Working Well” project and a joint commissioning role for the Work Programme (both aim to get people off benefits and into work) and a role in health and social care integration. Like the Iron Man, and like London 15 years ago, the Manchester County Council is gradually reassembling itself. But it is by no means clear that unitary authorities in the other City Regions with less inclusive traditions have an appetite for ceding sovereignty to a new authority or a new elected mayor.

The “devoManc” announcement in February 2015 provides for increased devolution in greater Manchester of funding for health services. In return it has been agreed that there will be an elected mayor who will also take over the responsibilities of the Police and Crime Commissioner. This could be a model for future devolution. However, in other areas whilst there has been a clamour for increased devolution of powers and funding there has been a reluctance to accept the elected mayors which the government would like to go with this, although in March 2015 the chairs of the Sheffield and Liverpool combined authorities did state that they would be willing to consider elected mayors in exchange for the devolution of health and social care budgets.

Where next? Scotland, Wales and Northern Ireland have their own assemblies and governments, with law-making powers, sole responsibility for a wide range of governmental functions and clear promises of more fiscal independence. In England we have a failed attempt at regional government, a persistent focus on city regions, increasingly strident county councils, a confusing alphabet soup of sub-regional economic development bodies, and intricate horse-trading with cities over funding, spending powers and bits and pieces of devolved authority. What will happen next?

The performance of the SNP at the general election reignite the Scottish independence debate despite the fact that the referendum result was said to have settled that issue for a generation. The Conservative manifesto committed to deliver English votes for English laws and we could see a move towards a more federal United Kingdom with a knock on impact for local government. On 2 July 2015 the government published its proposals to make changes to the Standing Orders of the House of Commons to, “give English and Welsh MPs a fairer say over laws that only affect their constituencies and are on matters which have been devolved.”

In their manifesto the Conservative party promised that it would: devolve far-reaching powers over economic development, transport and social care to large cities which choose to have elected mayors. We will legislate to deliver the historic deal for Greater Manchester, which will devolve powers and budgets and lead to the creation of a directly elected Mayor for Greater Manchester. In Cambridgeshire, Greater Manchester and Cheshire East, we will pilot allowing local councils to retain 100 per cent of growth in business rates, so they reap the benefit of decisions that boost growth locally. We will devolve further powers over skills spending and planning to the Mayor of London. And we will deliver more bespoke Growth Deals with local councils, where locally supported, and back Local Enterprise Partnerships to promote jobs and growth.

In a speech shortly after the election George Osbourne signalled the government’s intention to press on with devolution and implementing the legislation required to deliver the Northern Powerhouse. The Cities and Local Government Devolution Bill was included in the Queen’s Speech and sets out an

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agenda for further combined authorities to be created with elected mayors the possibility of devolving further powers. It also suggested (as proposed in Greater Manchester) that the Combined Authority mayor will take over the responsibilities of the Police and Crime Commissioner.

Powers, allocation of functions and delegation

The Welsh Auditor

Over the passed two years Welsh Auditor General has issued a series of public interest reports into events at Caerphilly, Pembrokeshire and Carmarthenshire County Councils.

The issues were: . Pembrokeshire and Carmarthenshire agreed in the autumn of 2011 to pay any of their senior staff who opted out of the Local Government Pension Scheme a supplement, instead of making employer’s contributions to the pension scheme. The officers who took advantage of the decision were Carmarthenshire’s Chief Executive, Mark James, Pembrokeshire’s Chief Executive, Bryn Parry Jones, and another unnamed Pembrokeshire officer. The Auditor criticised the legality of the Carmarthenshire decision and the way in which it was reached, and they rescinded it. He issued a report on the procedural shortcomings. His report to Pembrokeshire said that the payments were outside the Council’s powers, relevant considerations (including the public sector equality duty) had not been addressed, the decision was discriminatory, officers with an interest in the outcome had taken part in the decision-making process and, contrary to the report to members, there had been a cost to the Council. Both authorities said that, in principle, the decisions that they took were lawful, but Carmarthenshire acknowledged procedural failings. Pembrokeshire denied that there was a cost to the Council. Police investigations started. There were calls for Mr James and Mr Parry Jones to be suspended, and for a period Mr James was “no longer undertaking his duties” until the investigation was concluded. . Between 1998 and 2008 Jacqueline Thompson made eight planning applications to Carmarthenshire Council. All were refused. She accused Chief Executive Mark James of corruption. In 2006 she published this correspondence and in 2009 she started a blog called “Carmarthenshire Planning Problems and more”. In 2011 she started filming Council meetings. She was asked to stop. She alleged that a Council officer had assaulted her and tried to steal her phone. On another occasion she was arrested to prevent a breach of the peace. She urged Mr James to post a reply, which he did. He said that she had been running a campaign of harassment, intimidation and defamation of Council staff and members, and that the Council might have complained to the police of an attempt to pervert the course of justice by making false statements alleging the theft of the phone. She sued him for libel, and he counterclaimed that her blog had defamed him by accusing him of corruption, misuse of Council funds and lying. The Council agreed to grant Mr James an indemnity in respect of the legal costs of the proceedings, including the counterclaim. The judge found against Ms Thompson, and upheld Mr James’s counterclaim in part, awarding Mr James £25,000 damages and ordering Ms Thompson to pay Mr James’s legal costs of £23,217. The public interest report said that the decision to offer the indemnity was unlawful first because the Council had no legal power to indemnify an officer against the cost of bringing defamation proceedings (as opposed to defending them, so the issue is the cost of the counterclaim) and second because of procedural shortcomings in the way the decision was taken. Carmarthenshire retorted that not only did it obtain opinions from two QCs supporting the decision, but also it had notified the Welsh Audit Office of its intentions and apparently received its support. It published the advice, from James Goudie QC and Tim Kerr QC, 14

and the correspondence with the WAO on its website. Ms Thompson is still blogging. The Court of Appeal refused her permission to appeal. She said that she had to pay damages and legal costs adding up to over £250,000 and was in some financial difficulty. The legal powers dispute turns on whether an indemnity can be given under section 111 of the Local Government Act 1972, in exceptional circumstances as seemingly approved in R. (on the application of Comninos) v Bedford BC [2003] EWHC 12, or whether the Local Authorities (Indemnities for Members and Officers) Order 2004/3082 and the Local Authorities (Indemnities for Members and Officers) (Wales) Order 2006/249 (which contain powers to indemnify but not in respect of defamation proceedings brought by an officer or member) excluded s111. The stand off petered out, though, when in July 2014 Carmarthenshire and the auditor said that they would take no further action and just “move on”. So we are no nearer to an answer – so far at least. . Camarthenshire Council invited the Welsh LGA to carry out a peer review. The outcome of this was reported in November 2014 and 39 recommendations were made. . Both Mr James and Mr Parry Jones applied for voluntary severance. . Whether or not Mr James will repay the indemnity and pension payments is unclear. A Plaid Cymru Welsh Assembly member said “If Mr James wants to leave then that is a matter for him, but I believe no more public money should be paid out for his departure”. It was reported that Mr James would be paid £446,000 if he left. However, councillors indicated that they would veto any payment. In February 2015 Mr James announced that he would be staying with the council. . Mr Parry Jones was invited to repay his pension payments, but it is not clear whether or not he did so. The Council passed a vote of no confidence in him and agreed to start a disciplinary investigation. His application for voluntary severance was then agreed, although reportedly the severance payment was reduced from £330,000 to some £280,000 after the Auditor intervened by serving an advisory notice, which he later withdrew, because the calculation behind the original sum reflected the pension payments. He has now left the authority. Press reports queried why he was allegedly provided with a £90,000 Porsche Panamera as his official car, in addition to his “salary of almost £195,000 plus benefits”. . In January 2012, the Chief Executive of Caerphilly Council, Anthony O’Sullivan, was advised by Caerphilly’s Monitoring Officer that it was necessary to review the anomalous position of those chief officers who still had essential car user and additional annual leave allowances, and that he could do so under his delegated powers. A decision was taken by officers to proceed. The public interest report said that the decision was unlawful. The Chief Executive did not have delegated powers to agree changes to his own terms and conditions. He and some of the other chief officers who seemed to have participated in the decision were affected by it, and had an obvious personal interest in it and were biased. Third, the decision was not publicised: the Monitoring Officer had advised incorrectly and other advice that he gave was not followed. Then in September 2012 Mr O’Sullivan recommended a new senior officer pay structure to the Council’s newly created Senior Remuneration Committee. The new structure included a significant pay increase, which attracted some adverse comments. The April 2013 public interest report said that the proceedings of the Committee had been unlawful. The meeting had not been advertised properly, notice had not been given and the papers had not been made available in advance. Some of the officers who would have benefited were present during the meeting. The report to the meeting was written by the Chief Executive, one of the beneficiaries, and did not address all the options suggested by the Council’s consultants. Mr O’Sullivan, his deputy and the authority’s Head of Legal are now imminently facing trial for misconduct in public office. All three are suspended on full pay. . In an unconnected incident, The ICO found Caerphilly had breached the Data Protection Act when it ordered the surveillance of an employee suspected of fraudulently claiming to be sick. The surveillance was only authorised on anecdotal evidence and began only four weeks into the employee’s sickness absence. No other measures were taken to discuss the employee’s absence

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before the decision to use the covert surveillance and the report, which was produced by a third-party company, was never used. Anne Jones, Assistant Commissioner for Wales, said: “It shouldn’t need to be said that spying on employees is incredibly intrusive and must only be done as the last resort. Organisations need to be absolutely clear why they need to carry out covert surveillance and consider all other alternatives first. If it cannot be completely justified, it shouldn’t be done.”

Delegation to officers

The Local Government Acts 1972 and 2000 both permit the delegation of functions to officers, and the authority is required to publish lists of those delegations, usually found in the Scheme of Delegation in the constitution. But, in reality, the senior officers to whom the delegation is made will rarely exercise the functions personally. There is a common law principle that “delegatus non potest delegare” ("one to whom power is delegated cannot himself further delegate that power"). How is the circle to be squared?

In Provident Mutual Life Assurance Association v Derby City Council [1981] 1 W.L.R. 173 the House of Lords decided, by a majority, that a rating decision taken by a case officer in the exercise of the Chief Finance Officer’s delegated powers, but without his personal involvement, was acceptable because the decision was administrative and the CFO was responsible for “administering [the Council’s] …financial affairs”). In Cheshire CC v Secretary of State for the Environment [1988] J.P.L 30 a planning enforcement notice was issued by an in-house solicitor in the exercise of powers delegated to the County Secretary and Solicitor. The SoS declined to deal with an appeal on the ground that the notice was unauthorised. Schiemann J said that “it was inconceivable that the Council intended that all [the delegated] functions should be attended to by one man, or that he himself should make the relevant value judgments himself in respect of each of them” so the Council had “arrange[d] for the discharge of any of their functions by an officer” – the solicitor - under section 101 of the 1972 Act. In R. (on the application of Blow Up Media UK Ltd) v Lambeth LBC [2009] 1P. & C. R. 10 a notice to remove an advertising hoarding was signed by a team leader in the Planning Department. There was an issue about the scope of the Scheme of Delegation but, that apart, planning functions were delegated to a more senior officer, Mr Brown. The Scheme said that an officer to whom functions were delegated could “nominate or authorise another officer to exercise that power, duty or function, provided that officer reports to or is responsible to the delegator” but required director-level approval to sub- delegation. The Judge, Sir Michael Harrison, said “I am satisfied, following the reasoning in the cases that I have referred to, that it would have been wholly impracticable for Mr Brown to have dealt himself with all his functions as Assistant Director of Planning. In my view, those cases [cited above] show that it is reasonable and lawful to permit sub-delegation to other officers.”

Then in UK Real Estate Ltd v Camden LBC [2013] EWHC 3505 the Claimants argued that the decision to prosecute them for displaying an advertising hoarding had not been taken properly. The power to prosecute was delegated to the Borough Solicitor, but the decision to prosecute was taken by a solicitor in his department and he had limited personal involvement. The solicitor said that she had prepared an Authority to Prosecute form for the Borough Solicitor to sign. The Judge found that that form, and the detailed consideration given by the solicitor, were sufficient.

The latest case is Pemberton International Ltd v LB Lambeth [2014] EWHC 1998 (Admin). This was a challenge to the grant of planning permission for a change of use of premises to use as a restaurant and café and the variation of a condition attached to a previous planning permission which also permitted that change of use. There were complaints about noise, from an external seating area, to which the condition applied, hence the challenge. 16

The Scheme of Delegation contained “Notes”, described as “guidance” which included “An officer to whom a power, duty or function is delegated may nominate or authorise another officer to exercise that power, duty or function, providing that officer reports to or is responsible to the delegator”. This is the same wording as in Blow Up Media, of course. The Scheme itself included this: “The following delegated powers are subject to the Executive Director of Housing, Regeneration and Environment vesting, in addition to those powers delegated by the Council to the Officers specified in this Scheme of Delegation, similar delegated authority to other appropriate officers. Any delegation of powers made by the Executive Director of Housing, Regeneration and Environment, in addition to those specified in this Scheme of Delegation, must be made in writing.” … “3. The authority to determine town planning applications and to discharge all other functions concerning planning and development control (including but not limited to advertisement control, listed building and conservation area control and tree preservation orders) and related matters, including enforcement decisions and actions, as set out in paragraph 1 above, is delegated to the Divisional Director (Planning, Regeneration and Enterprise).” And it contained certain “safeguards” including: “The greater the extent to which the discharge of the function affects individual rights or requires the exercise of discretion or professional judgment, the less likely it would be lawful to authorise the subordinate to act.” … “The degree of control maintained by the senior officer maintained by the senior officer over the subordinate may be a material factor in determining the validity of the authorisation. In cases where significant discretion or judgment must be exercised, a high degree of control should be retained.”

The decision was taken by a principal planning officer. The Divisional Director (Planning, Regeneration and Enterprise) had given her written authorisation in these terms: “Pursuant to the said scheme of delegation I hereby delegate to you [names given] authority to make all the said decisions and exercise all powers which are otherwise reserved to me as the Divisional Director for Planning, Regeneration and Enterprise”

The delegation challenges, and the findings of the Judge, Lewis J, were: (1) The “Notes” were described as “guidance” and they could not confer power. The Judge felt able to construe the constitution as a whole and to give effect to the apparent intention. (2) Section 101 of the 1972 Act did not permit sub-delegation. The Judge said that the Scheme “authorised” the exercise of delegated powers by an officer nominated by the Director. This was consistent with section 101. However he added: “The nature of this decision, in essence approving a variation of a condition, was one of those decisions which one officer could legitimately arrange for another officer to take on her behalf. There would, in my judgment, be some difficulty with finding that to be an acceptable route for holding that the Divisional Director could delegate the function entrusted to her to another officer such as a principal planning officer. The function is an important one. It involves not merely forming an opinion but granting an application for planning permission for development without having to comply with conditions. In the event, as I have concluded that the scheme of delegation properly construed does itself identify the officers who are authorised to exercise the relevant functions, it is not necessary to express a concluded view on this issue.” (3) The issue should have been referred to committee under the Scheme because a variation of a condition amounted to the grant of new permission for an A3 use which was reserved to committee. The Judge disagreed with this construction.

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(4) The “Note” was inconsistent with the safeguards. The Judge found that there was no conflict. (5) The officer had not applied her mind to the option of referring the decision to the committee voluntarily. The Judge said that this was inherent to the decision that had been taken. However the Judge had some sympathy with the claimant’s arguments, and criticised the convoluted wording of the constitution.

The moral seems to be this. First, Schemes of Delegation are often developed piecemeal, to reflect the waxing and waning of tensions between members and officers, and can contain delicate fudges. This is plainly dangerous. Second, the Judge appeared less willing to depart from “delegatus non potest delegare” to acknowledge the practicalities of decision making than some of his predecessors, but in the end the practical considerations will probably win out. Third, it is safer if a Scheme delegates powers to officers authorised or nominated by the primary delegate than if it just allows sub- delegation.

Delegation to committee

The case of Bridgerow Ltd, R (on the application of) v Cheshire West and Chester Borough Council [2014] EWHC 1187 (Admin) arose after Cheshire West and Chester council refused to renew the licence for Platinum Lounge. The club has operated in Chester’s city centre since 2005. On its first application under the new regime brought in under the Policing and Crime Act 2009, the appellants Bridgerow, owners of Platinum Lounge, were granted a sexual entertainment venue (SEV) licence in April 2012. When the company applied for renewal of the licence a year later however, the authority refused.

Bridgerow brought a judicial review challenge on a number of grounds including an allegation that the council had acted in contravention of its constitution on the basis that the decision should have been taken by a panel of three members but was in fact taken by the Licensing Committee, made up of 12 councillors.

The claim was upheld by the High Court. Giving judgment Mr Justice Stuart-Smith noted “To my mind it is clear beyond argument that the constitution said and meant that Bridgerow's renewal application should have been decided by a panel of three members drawn from the full committee on a politically proportionate basis. Equally clearly, that is not what happened.” In addition, he noted that: . the purpose and effect of the process leading to the adoption of the constitution and its publication was "to require to be made publicly available the scheme of delegation of functions which are the responsibility of the executive, including delegations to individual portfolio holders." It was therefore important that the manner in which executive functions would be carried out (and to whom they were to be delegated) was published, transparent, and reliable. . local authorities were corporate personalities established by statute and the process leading to the adoption and publication of the constitution was the statutory route for the delegation of functions . it was plain that the power to make the decision in this case had been sub-delegated to a panel of three. “That is not a delegation by the licensing committee as such: rather, the executive function is delegated by the constitution to the panel. It is not therefore open to the full licensing committee to arrogate the delegated power to itself.” . it could not be suggested that the fact that the decision was taken by 12 members of the licensing committee rather than a panel of three was of negligible importance, on the facts of this case.

On the final point, which the judge said was critically important, he provided two reasons. First, as the panel of twelve was equally divided, it was possible in theory that a panel of three could have voted 3- 18

0 or 2-1 either way, depending upon which of the twelve (or other members of the licensing committee) was on the panel. Second, although the Committee of 15 members was constituted on a politically proportionate basis in line with the political composition of the council, the twelve who made the decision were not. Although any suggestion of whipping was now abandoned, he noted, there could be no certainty how twelve members or a panel of three who were constituted in line with the political composition of the council would have voted. He concluded therefore “So, although there is a superficial attraction in the submission that having the decision taken by more than three was an advantage, what matters is that the decision should have been taken by three and it cannot be said that a panel of three would have reached the same result as the twelve who in fact made the decision. Seen in this light, the observation of Lord Bingham of Cornhill in Berkeley supports Bridgerow's position and not that of the council.”

In Berkeley v Secretary of State for the Environment, Transport and the Regions [2001] 2 A.C. 603, a House of Lords decision about whether Fulham FC’s planning permission should be quashed because of the Secretary of State’s failure to consider whether the development met the criteria for an environmental impact assessment, Lord Bingham had implied that a procedural violation could be ignored if it “is so negligible as to be truly de minimis and the prescribed procedure has in all essentials been followed”.

Our thoughts are these: . The decision serves as a salutary reminder of the need to focus on the minutiae of delegated powers. . There is a curiosity to explore. The Judge referred to the function of determining SEV licence applications as an executive function. This is a bit odd. If it is an executive function, it should not be delegated either to a 15 member committee or to a politically balanced three member panel. In practice, local authorities treat SEV licensing as a non-executive function like all other sex establishment licensing, in line with the Home Office Guidance on the 2009 Act. In all probability, the Judge did not apply his mind to the distinction between executive and non-executive functions. His comment on the purpose of a local authority constitution draws on the relevant ODPM (as it then was) Guidance, and mentions executive functions, but it applies equally to non- executive functions, so in the immediate context the distinction was unimportant. But is this a non-executive function? We turn to the much amended Local Authorities (Functions and Responsibilities) (England) Regulations 2000. Regulation 2 specifies the functions that are not to be the responsibility of the Executive. It says that they are “the functions … specified in column (1) of Schedule 1 to these Regulations …by reference to the enactments, directions and circulars specified in relation to those functions in column (2)”. Column (1) is the operative bit: you are to refer to Column (2) but not, one would think, so as to extend Column (1) beyond the functions that it lists. The relevant entry in Schedule 1 is Paragraph 15. It says “15. Power to license sex shops and sex cinemas.” Column (2) says “The Local Government (Miscellaneous Provisions) Act 1982, section 2 and Schedule 3.” But SEVs are not sex shops or sex cinemas. The 2009 Act amended the 1982 Act by creating a third category of sex establishment, distinct from shops and cinemas. Assuming, as we must, that Parliament knew what it was doing, and what it was not, there has to be a decent argument that SEV licensing is an executive function by default. If that is right – and we are not saying that it is - it lands a very big and ugly cat amongst some very jumpy pigeons. Licensing committees could not deal with SEV licensing and those that have purported to do so would have been acting outside their powers. We will keep our fingers crossed, leave well alone and move swiftly on. . Section 101 of the Local Government Act 1972 oddly does not seem to have been cited in the judgement. This is the section which allows local authorities to arrange for the discharge of their

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functions by committees, sub-committees or officers. Section 101 (4) says “Any arrangements made by a local authority or committee under this section for the discharge of any functions by a committee, sub-committee, officer or local authority shall not prevent the authority or committee by whom the arrangements are made from exercising those functions.” So if, as in this case, the arrangements for the three-member Panel were made by full Council, not the parent Licensing Committee, section 101 (4) would not reserve the same powers to the committee, but it would reserve them to full Council. . Another key point is the way the Council formulated its scheme of delegation. It gave the Licensing Committee power to determine applications for the grant, waiver or revocation of sex establishment licenses, and politically balanced Panels drawn from the Committee the power to determine all other applications for sex establishment licenses. That makes sense. Only the full Committee could take the big decisions, the Panels could deal with renewals and other miscellaneous bits of business. But unfortunately the wording meant that the Committee could not deal with renewals. The moral this time, of course, is to check that your scheme of delegation gives parent committees, or the cabinet, powers which are no less extensive than any specific powers delegated to sub-committees, panels or officers.

Substitution

In R (on the application of Doug Carnegie (on behalf of The Oaks Action Group)) v London Borough of Ealing & Acton Regeneration Group Ltd [2014] EWHC 3807 (Admin) the Court approved the substitution of a planning committee member by another member with a different view on a controversial planning application, finding it unarguable that the substitution was improper or that the substitute had a closed mind or was biased.

A developer, the Acton Regeneration Group Limited, sought planning permission for the redevelopment of the Oaks Shopping Centre in Acton, in the London Borough of Ealing. The application was controversial. The planning officer’s report recognised that the redevelopment would reduce residents’ amenities, but recommended approval because of the planning status of the site, the regeneration benefits and the new homes that would be included. The site is bordered on three sides by a conservation area and within the setting of a number of Grade II and locally listed buildings, but English Heritage did not object to the scheme and the report dealt, albeit not at great length, with the heritage issues.

One of the members of the Planning Committee had decided, for reasons which we will explore later, to absent himself from the meeting. His Group substituted him, first with one member and then with another. The original member opposed the development, but the substitute voted for it.

Permission was granted, and a member of the Oaks Action Group sought permission to judicially review the decision. He argued that the report was inaccurate and misleading on the heritage issues and that the substitution was unlawful. The Council and the developer disagreed, saying also that the claim was out of time because the claimant had not included statements of facts and grounds in the claim form, but had just attached a copy of the letter before claim and added “statement of facts and ground – within 14 days”. These were provided some eight days after the deadline for bringing the proceedings, but they closely resembled the letter before claim.

Patterson J gave judgement in the rolled up permission and merits hearing on the 14 November 2014. He found that the claim form was defective, but gave an extension of time because the other parties were not prejudiced. He rejected the heritage argument on the facts, reciting the relevant case law. 20

His judgement on the substitution is more interesting. In essence, he found that the substitute member was not biased and had not predetermined the decision and that the Council and the Group had followed the Council’s standing orders.

The judgement on bias and predetermination was a likely outcome in the current climate, in the absence of any blatant shenanigans and because the substitute had made a measured contribution to the debate. But the judgement on the substitution process deserves unpicking.

Under the Council’s constitution committees are appointed by the Council at its annual meeting, having received nominations from the political groups on the basis of the political balance calculations. Council and Committee Procedure Rule 24 says: “24.SUBSTITUTE MEMBERS Where any member of a committee, sub-committee, or panel is unable to attend a scheduled meeting of that body, for a reasonable reason, then a representative of that political group (if any), to which that member belongs, may, by written notice to the proper officer at any time before the day of the meeting in question, authorise the proper officer to make a change to the standing appointments of the committee, sub-committee, panel in question, to substitute an alternative member for the duration of that meeting.”

The Planning Committee meeting was in October 2013. Full Council made the appointments to committees at the annual Council meeting in May 2013. There were 13 seats on the Planning Committee, allocated in the ratio seven Labour, five Conservative and one Liberal Democrat. The approved schedule of members for the committee contained 26 names, twice as many as needed, which it described as a “Pool of Members permuted” in that ratio. The member who was substituted, Councillor Gulaid, and the first and eventual substitutes, Councillors Varma and Kang, are amongst the list of 14 Labour councillors in the schedule.

The Claimant’s evidence was that Councillor Gulaid had told him that he had been advised by the Labour Group Whip that he should not attend the meeting because he had made statements opposing the development and there would be a risk of a predetermination challenge. The Claimant said that this was wrong, because Councillor Gulaid had not made any such statement. The Council’s evidence was simply that the proper officer had been notified of the change by the Group, under Procedure Rule 24. Councillor Gulaid did, as it happened, attend the meeting, to speak against the development as ward councillor. The Claimant said that the only factual explanation for the change was that the Whip did not want Councillor Gulaid to vote. Patterson J expressed no interest in that inference. The Council, though, argued that the composition of the committee “was a political decision and is not therefore justiciable”, relying on R v Secretary of State for Education and Employment ex p Begbie [2000] 1 WLR 1115. Patterson J appeared to accept this. He said “It was a political decision as to who attended the meeting to vote on the planning application on 16 October 2013. Whether there was a reasonable reason for any member being unable to attend a committee meeting was a matter to be determined by the political party… that decision making process is part of the democratically elected political process and is outwith the reach of the courts.” He found that the Rule 24 procedure had operated properly, and that it was unarguable that the substitution was unlawful. He also found that the standing order was not limited to cases where the member in question is physically unable to attend the meeting.

Whilst this was a sensible decision on the facts, and will be welcomed by local authorities, most of whom allow substitutions in planning and licensing committees, the reasoning is curious.

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First, there are a couple of rather pedantic points. One is that that Rule 24 allows the proper officer to make a change to “standing appointments”, whereas here there was a pool of appointees, which is different. The other is that the legislation says “a local authority [meaning full Council] may appoint a committee” (Local Government Act 1972 section 102 (1)) and “it shall be the duty of [a local] authority to exercise their power to make appointments to [a committee] as to give effect … to such wishes about who is to be appointed to the seats on that body which are allocated to a particular political group as are expressed by that group” (Local Government and Housing Act 1989 section 16 (1)). Arguably, this is a two stage process. Wishes are expressed and then the appointment is made. Full Council cannot empower someone else to take the decision. Whilst it is acceptable to make appointments which allow named substitutes to replace members who cannot, for whatever reason, attend the meeting, this should be a mechanical, not a political, process. Local authorities cannot divest themselves of their statutory discretion. They may only exercise their powers for the purpose for which they were not conferred, and they must not take decisions for the primary purpose of securing electoral advantage. On the basis of this judgement, though, this point appears to have fallen away, presumably because the effect of the legislation is that the council no longer has any discretion. The decision was treated as a group decision, taken in the political arena, and not susceptible to judicial review.

Secondly, let us suppose - entirely hypothetically because the evidence was scant - that the Claimant was right, and that Councillor Gulaid was told to stand down because of a wholly mistaken belief that he should not take part, or for some extrinsic purpose in order to ensure that he did not vote against the development.

As to the first point, in R. (on the application of Ware) v Neath Port Talbot CBC [2007] EWHC 913 (Admin) a planning committee decision was quashed at first instance because an officer had apparently overcautiously advised four councillors to leave the meeting, affecting the vote. The decision was overturned on appeal, but on the facts, not on the point of principle. Therefore, if wrong advice is given to a member not to take part in a planning decision then this can make the decision unlawful.

But the nub of the judgement is that this was a political decision, which cannot be judicially reviewed.

In Brunyate v ILEA [1989] 2 All ER 417 the Governing Body of Haberdashers Aske’s schools had to decide what kind of schools they should become under new legislation. The Inner London Education Authority appointed the majority of the governors, traditionally on a politically balanced basis. The schools’ foundation body favoured becoming a City Technology College, but ILEA favoured voluntary controlled status and more consultation. The two conservative governors declined to commit to this approach. ILEA replaced them, and they challenged the decision. They argued that the power of removal could not be used so as to usurp their independent role as governors. The House of Lords agreed, and quashed the decision. And in R v Greenwich London Borough Council ex p Lovelace [1991] 1 W.L.R. 506 the Court of Appeal held that it was lawful for a group to remove a councillor from a committee because he disagreed with group policy, but (obiter) not in order to punish him for voting in a particular way. In both cases, the Court evidently felt able in principle to investigate the propriety of the appointments even though they were essentially political decisions, but both predated the 1989 Act which obliges local authorities to give effect to group wishes.

Ealing and the developer cited Begbie. In that case, a pupil challenged the Secretary of State’s decision, following the abolition of the assisted places scheme, not to exercise his new statutory discretion to allow her to keep her state-funded assisted place at a private school for the remainder of

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her education. She said that, when in opposition, members of the new Labour government had promised that this would happen. There was a complication around the difference, between schools which provided only primary or secondary education and – as in this case – schools which provided “all through” education, and a dispute about the various statements that had been made. The challenge alleged that the decision was in breach of a substantive legitimate expectation, was irrational, and interfered with the claimant’s ECHR right to education. The Court of Appeal held that pre-election promises did not give rise to a legitimate expectation, that there was no abuse of power, that the decision was not irrational, and that withdrawing assisted places funding did not interfere with the ECHR right. It is a major leap from the Begbie judgement to the proposition that a local authority “political” decision, or a decision taken by a political group acting in that capacity, is beyond the scope of judicial review.

But the leap has been made. Unless the decision is reversed (perhaps on the point that this was a Council decision, not a group decision, because of the interplay between the 1972 and 1989 Acts) it seems from this case that decisions about the composition of committees are indeed beyond challenge, however outrageous they may be, provided that the members who ultimately take part in the decision are not biased and have not predetermined the issues before the committee.

Liability for contractors’ negligence

The seminal case of Woodland v Essex County Council (2013) UKSC 66 (SC) concerned severe injuries to a child during a swimming lesson run by a Council contractor. The Supreme Court held that it was right to go behind the principle of vicarious liability and impose a non-delegable duty of care in certain circumstances, where the claimant is vulnerable or dependent on the defendant against the risk of injury, there is an antecedent relationship between the claimant and defendant that places the claimant in the defendant's care, from which it is possible to impute a positive duty on the defendant to protect the claimant from harm, the claimant has no control over how the defendant chooses to perform its obligations, the defendant has delegated to a third party some function which is an integral part of its positive duty to the claimant, and the third party is therefore exercising the defendant's custody or care of the claimant and the control that goes with it, and the third party has been negligent in the exercise of that function

This was new law, and there will be attempts to extend the scope of the principle. In NA v Nottinghamshire County Council [2014] EWHC 4005 (QB) the Claimant said that that she had been physically abused by her mother’s partner, then physically, sexually and emotionally abused by two sets of foster carers with whom she had been placed by the Council. She claimed that the Council had breached its duty of care, either by failing to remove her permanently from her mother’s care, or by otherwise failing to protect her. Second, she claimed that even though the Council had exercised reasonable care in terms of her foster placements, it was responsible for the foster carers' abuse, either on the basis of vicarious liability or on the basis that it owed her a non-delegable duty of care. The Court rejected the claims. There was no expert evidence to support the failure to remove and the failure to protect claims. Although the five Woodland elements were present, it was not fair, just or reasonable to impose a non-delegable duty. That would impose an unreasonable financial burden when it was in the public interest that local authorities should be able to use their scarce resources to provide fostering services.

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Proposed new Functions and Responsibilities Regulations

The Secretary of State consulted on a proposal to make, under sections 9D, 9DA and 105 of the Local Government Act 2000, the Local Authorities (Functions and Responsibilities) (England) Regulations 2015. DCLG wrote to local authorities on 29 January 2015 inviting any comments on the proposed Regulations.

A draft of the Regulations and a note explaining the changes that have been made in the draft are at: http://www.gov.uk/government/consultations/proposed-local-authorities-functions-and- responsibilities-england-regulations-2015.

The proposed Regulations would consolidate the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 and 15 subsequent amending Regulations, update existing provisions to reflect legislative changes (e.g. the Flood and Water Management Act 2010, the Health and Social Care Act 2012, and the Scrap Metal Dealers Act 2013), and give effect to certain policy developments.

DCLG drew attention in particular to the provisions in the draft Regulations on –

. council budgeting which give greater clarity about the roles of the full council and executive on budgeting and in year budget changes, . on a “mayoral plan”, reflecting an elected mayor’s commitments to their electorate, and the role of such a plan in the authority’s processes for deciding its strategies and policies, and . on the roles of the executive and council in relation to certain matters, in particular charges relating to neighbourhood planning, the establishment of combined authorities and economic prosperity boards, contracting out of functions under section 70 of the Deregulation and Contracting Out Act 1994, and that any decision to dispose of land and buildings with a value above £500,000 should not be a matter for the executive.

DCLG also stated that Ministers were also minded to include in the proposed Regulations provision to require decisions relating to -

. new parking enforcement areas or parking charges, and . to the frequency of waste collection should be put to the full council.

DCLG also sought views on whether, in the case of council budgeting, it is appropriate for the same arrangements to apply to all executives, whether led by a directly elected mayor or leader, or in the latter case should the full council have a greater role – for example, in relation to in year changes or spending priorities within the fiscal envelope set by the full council before the start of the year.

The consultation closed on 6 March 2015.

A consolidation of the often misunderstood rules on the allocations of functions and responsibilities is long overdue. However, as was the habit of DCLG under Mr Pickles’s leadership these draft regulations would not just consolidate and tidy up these rules they proposed a few new requirements and the requirement for changes to the frequency of waste collection whiffs of a personal agenda rather than a sensible delineation of Council/executive responsibility.

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Procedure

The Openness of Local Government Bodies Regulations 2014 – questions, answers and unanswered questions

What is this all about? In the summer holidays, CLG evidently have nothing better to do than rewrite the rules for local authority meetings and decisions. August 2012 saw the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 SI 2012/2089, and August 2014 the Openness of Local Government Bodies Regulations 2014 SI 2014/2095. There seem to be two drivers. The first is the Government’s commitment to transparency. As decision-making in local authorities is infinitely more transparent than anywhere else in the public sector, this is more of a fetish than a compelling principle. The second is that a handful of people were supposedly prevented from filming, recording, tweeting or blogging during public meetings. You can see the sense in opening this up and modernising the references, although there need to be checks and balances to ensure that meetings are run properly, that reporting is fair, that genuinely confidential information is protected and that members of the public are not unreasonably inhibited from expressing their views on planning applications and the like. But, of course, this is about much more than filming meetings.

These notes cover “principal councils” – district, unitary and county councils – in England. There are different rules for Parish and Town Councils, the Council of the Isles of Scilly and in Wales. Many of the rules also apply to bodies like the GLA, LFEPA, TfL, joint authorities, economic prosperity boards, combined authorities, fire and rescue authorities, National Parks authorities, the Broads Authority, and the Common Council of the City of London, but their advisers will need to check the legislation in some detail to be sure which do and which do not. CLG guidance (“Open and Accountable Local Government”, published August 2014) recommends other bodies like LEPs and Neighbourhood Forums to follow the rules about filming, recording and reporting on meetings, but they are not obligatory.

Why are there two sets of rules? The 2012 Regulations apply to meetings and decisions on executive functions. The 2014 Regulations contain some further thoughts on what should have been in the 2012 Regulations and apply very broadly similar rules to meetings and decisions on non-executive functions. Most of the rules for meetings on non-executive functions are to be found in the Local Government Act 1972 and the Public Bodies (Admission to Meetings) Act 1960 for parish councils, both of which are amended by the 2014 Regulations. The 2012 Regulations were made under the Local Government Act 2000, so they could not alter the 1972 and 1960 Acts, even though the CLG press release at the time pretended that they had. The Local Audit and Accountability Act 2014 made it possible for the 2014 Regulations to amend the earlier Acts.

The Statutory Instruments Joint Committee commented on the bringing into operation of the Regulations on the day after they were to be made: “It follows that the Committee does not find compelling the justification that the Department has offered for the provision which would bring the Regulations into force on the day after that on which they are made. There is nothing in the Department's memorandum to indicate that the urgency for the changes in the law made by the draft Regulations is so great that they have to be brought into force immediately, denying those affected any time to prepare for their implementation.”

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What are executive and non-executive functions? Most authorities operate an “executive” form of governance, under which most decisions are taken by a Leader or Elected Mayor and a small Executive or Cabinet of elected members. These members take decisions on executive functions. Other decisions - non-executive decisions - are taken by full Council, committees and sub-committees. In both cases, decisions can be delegated to officers and ward members. The non-executive functions are listed in legislation, principally The Local Government Act 2000 and the Local Authorities (Functions and Responsibilities) (England) Regulations 2000 SI 2000/2853, as amended. Anything not in the list is an executive function, generally decisions by full Council and on planning, licensing, staffing, audit, member conduct and other miscellaneous matters which are thought to be too sensitive to be entrusted to individual executive members or single-party cabinet meetings

Can you summarise the rules? That is not easy. The CLG publication “Open and accountable local government – a guide for the press and public on attending and reporting meetings of local government” is a valiant attempt at a plain English summary, but it is 33 pages long. As a very rough synopsis, the rules cover: . The meetings that must be held in public, those that may be held in private, and the procedures that must be followed before a meeting is held in private. . The rights of members of the public to film or record meetings. . The public notice that must be given in advance of meetings. . Public access to reports, agendas and other documents before, at and after meetings. . The public notice that must be given before certain “key decisions” (the executive decisions which are significant in terms of the expenditure or income, significantly affect communities in more than one ward or meet any other locally determined criterion) are taken by an individual member or officer. . Public access to the minutes of meetings and to a record of certain decisions taken at executive meeting or by individual members or officers, plus other related documents.

Can members of the public film and record meetings? Yes they can! Anyone attending a meeting can “report” on it. This means filming, photographing and recording the meeting, using some other means of capturing the proceedings not yet invented, and commenting on it, but authorities need not allow people at the meeting to make an oral commentary, however quietly. They must be given reasonable facilities to enable them to do so. This means somewhere to sit where you can see and hear what is going on, and according to the CLG guidance “ideally a desk”. There is no obligation to provide wi-fi. You can be prevented from leaving a recording device or a bug in the room to record or broadcast events at a private meeting, though.

There is no need to inform the authority in advance, but the Guidance says that it is “advisable” to do so, because the duty to provide reasonable facilities will then apply. The authority cannot require you to ask for permission, and it has no editorial control.

Curiously, these rules do not apply to joint committees established by two or more authorities to exercise non-executive functions. Those meetings must offer facilities to the press, but there is no obligation to allow filming or recording.

Many authorities have now adopted protocols to protect children, vulnerable people and those who may object to being filmed, not only from members of the public (so far as this is possible) but also from the authorities’ own webcasts. They usually aim to ensure that people are aware that they are being filmed or recorded, and that the recording is of the meeting, not of the people in the public

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gallery. They may seek to prevent people roaming around the room, making too much noise, using special lighting or flash photography or disrupting the meeting in some other way, and members of the public can be excluded if they are disruptive. They can provide a basis for mediation between those members of the public who wish to record and those who do not wish to be recorded, and for politely requesting that recordings are not edited inappropriately. But these are essentially public events, and there should be no expectation of privacy. Some protocols are currently worded more restrictively than the Regulations permit, and will need to be reviewed.

If the participants in the meeting spend more time messaging and tweeting than listening to and taking part in the debate, then that is not against the rules and cannot be helped.

How can meetings be held in private? These rules have been around for a long time. If the meeting is to consider information ruled to be “confidential” by a Government department, by statute or by or a court, it must be held in private. If it is to consider information that falls within one or more of the categories of information that can be “exempt” from public access, then the meeting can decide formally to exclude the public, giving reasons. The categories cover individual privacy, commercial confidentiality, trades union negotiations, legal privilege and enforcement action, but a local authority’s decision to grant itself planning permission must be taken in public. The meeting must decide that the balance of the public interest favours holding the meeting in private. The authority’s “proper officer”, who arranges the publication of papers before the meeting, can provisionally anticipate this decision and withhold the information in question, marking the papers with the exemption category. After the meeting, the information is regarded as confidential, the minutes and records need not disclose that information and public access to documents is restricted.

The 2012 rules introduced a new requirement for private executive meetings. Twenty-eight clear days advance notice has to be given that the meeting will be held in private, and why, any objections have to be considered and another notice published five clear days before the meeting (which must also say why any objections have been rejected) subject to complicated rules about urgent decisions. But this requirement does not apply to non-executive meetings.

That apart, the person chairing a meeting can expel a member of the public if their disorderly conduct is disrupting the meeting.

Otherwise, meetings must be open to the public.

Can there be private pre-meetings? The rules only apply to meetings at which decisions are taken. Informal meeting, including briefing meetings and pre-meetings, can take place in private.

Prior to the 2012 Regulations there was a rule prohibiting informal meetings of executive members to discuss decisions that were to be taken in formal meetings within the next 28 days, if officers (apart from political assistants) were present and the meeting was not just for briefing purposes. The idea was to stop the executive taking sensitive decisions in private and rubber stamping them in public. That rule has been repealed, but a decision-taking pre-meeting could well be regarded as a “meeting” to which the Regulations apply, or as unlawful predetermination. But an informal call-over meeting, or a member-only meeting, is lawful in principle.

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How are these periods calculated? “Five clear days” is taken to exclude the day on which the notice is given, weekends and bank holidays and the day on which the meeting takes place, although CLG say that “twenty-eight clear days” is just calendar days and includes weekends and holidays, which makes sense even if there is no real legal basis for it.

What public notice is needed for meetings? Notice must be given, and the agenda, reports and “background papers” (see below) published, five clear days’ before the meeting. No one is quite sure whether a meeting may be held on shorter notice, but in cases of special urgency items and reports may be added and published later.

See below for advance notice of meetings taking key decisions.

What public notice is needed for key decisions? Key decisions are executive decisions are those which are likely to result in spending or savings which are “significant” in relation to the budget for the service or function in question, or in terms of the effect on communities living or working in two or more wards or electoral divisions. The government can give statutory guidance ion what this means. It did so in 2000, but that guidance has disappeared from the Gov.uk website and should probably now be regarded as obsolete. The authority can set thresholds, and most have done so in their constitution.

If an executive meeting, or an individual member or officer, is to take a key decision, then an additional and different notice must be published, 28 clear days before the meeting or decision if practicable. There is an urgency procedure for giving shorter notice if 28 days is not practicable. This is in addition to the notice of meeting. The notice must give details of the decision, who will take it, and when it will be taken.

What are these urgency procedures? It may not be practicable to give 28 days’ notice of key decisions, or 28 and then five days’ notice of private executive meetings. In those cases, there are urgency procedures.

In the case of key decisions, the first fall-back (the “general exception”) is, at least five clear days before the decision, to inform the chairman of the relevant overview and scrutiny committee (or every member of the committee if there is no chairman), and publish first that notification and then secondly (as soon as reasonably practicable, but not necessarily within the five days) a notice explaining why it was impractical to give 28 days’ notice.

If that is not practicable, there is a second fall back (“cases of special urgency”). A key decision can be taken if the chairman of the relevant overview and scrutiny committee agrees that the decision is urgent and cannot be reasonably deferred. If there is no such chairman, or he or she is unable to act, approval can be given by the chairman or ceremonial mayor of the authority, and in the unlikely event that there is no committee chairman, or authority chairman or mayor, approval can be given by the authority’s vice-chairman or deputy mayor. A notice of that approval, giving the reason, must be published as soon as reasonably practicable.

In the case of private executive meetings, if it is impractical to give 28 days’ notice or five days’ notice, the decision can still be taken in private if approval is obtained from the chairman of the overview and scrutiny committee, or in default the chairman/mayor or vice-chairman/deputy mayor, and public notice is given, in the same way.

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The Leader or elected mayor must report to full Council at least annually giving details of the key decisions taken under the urgency procedure since the last report.

What papers can the public access before, at and after meetings? Subject to the rules about confidential and exempt information, the public must be able to access agendas and reports when they are published and at the meeting.

Reports must be accompanied by a list of “background papers” – papers containing facts or matters on which the proper officer thinks the report or an important part of it is based, or which in his or her opinion are relied on to a material extent in preparing the report. This does not include “published works” such as legislation, or confidential or exempt information. The public can access these background papers.

The notice of a key executive decision must also list “the documents submitted to the decision maker for consideration in relation to the matter in respect of which the key decision is to be made” and “that other documents relevant to those matters may be submitted to the decision maker; and … the procedure for requesting details of those documents (if any) as they become available”. If the decision is likely to be taken in private, or the papers contain information that is confidential or likely to be exempt, the notice still has to be given, but the documents identified may not contain such information, or the advice of officers holding the post of political or mayoral assistant.

The authority must also make a register available giving the names and addresses of its members, their wards or divisions, and details of the members of every committee and sub committee and of anyone else (other than an officer) who is entitled to speak at their meetings. There must also be a list of the powers delegated to officers which last more than six months, and a summary of the public rights of access. This is now invariably arranged though the authority’s website.

What records must be made available? The minutes of the meeting must be publicly available as soon as they have been approved, usually at the next meeting of the body in question. Even in the case of a confidential or exempt item a “written summary” must be provided.

In addition, there must be a “record of decisions” taken at executive meetings. The record must detail the decision, the reasons for it, and any alternative options considered but rejected. It must also state any conflict of interest declared and any dispensation granted by the Head of Paid Service (on which more later).

Likewise, a similar record must be prepared for executive decisions taken by individual members or officers. This applies to all executive decisions made by members, including decisions made by ward members under delegated powers.

Under the 2014 Regulations, a similar “written record” must be produced of any non-executive decision taken by an officer under delegated powers, provided that the decision is taken: . Under a specific delegation contained in a council or committee resolution; or . Under a general delegation (usually the Scheme of Delegation in the Constitution) where the effect of the decision is to grant a permission or licence, affects the rights of an individual or award a contract or incur expenditure which materially affects the authority’s financial position.

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There is no need to produce a record of this kind if a record containing all this information is already a required under different legislation. That is a nice idea, but planning and licensing decisions, for example, do not usually capture the “alternative options rejected” or the mysterious stuff about conflicts of interest.

In both cases, the record must be made public. In the case of executive decisions, so must the report considered by the meeting or the decision-maker, a list of “background papers” (see above) and the background papers themselves. In the case of officers’ non-executive decisions, there need not be a report, but any background papers disclosing “facts or matter on which the decision or an important part of the decision [was] based; and [which] were relied on to a material extent in making the decision” must be made public.

If an individual ward member takes a non-executive decision, he or she must inform the authority of the decision within one month, and the authority must publish a record of that information.

None of this requires “confidential” or “exempt” information, the advice of a political adviser or assistant on an executive decision or draft reports (which are not classed as background papers), to be made available. There is a carve out to prevent the infringement of copyright (unless the authority owns the copyright) in papers that relate to executive decisions, but its scope is not entirely clear.

What is meant by a “conflict of interest”? No one is quite sure. Under the Localism Act 2011 members have to register “disclosable pecuniary interests”, and cannot take part in decisions that relate to them, and the authority’s Code of Conduct may require other personal interests to be registered or declared and that members should refrain from participating in related decisions. Under section 33 of the 2011 Act and the Code of Conduct the authority can authorise a body or an officer to grant dispensations allowing them to participate if certain criteria are met. The dispensation may be granted by the Head of Paid Service (usually the Chief Executive), or by some other person or body. This is different from the phrase “conflict of interest”, which appears in the Regulations but not in any other relevant legislation. The Regulations say: . The record of decisions taken at an executive meeting must include any conflict of interest declared by any member of the decision-making body, and any dispensation from the HOPS; . The record of executive decisions taken by individual members and officers must include any conflict of interest declared by any executive member consulted by the decision-maker, rather than by the decision maker, and any dispensation from the HOPS. . The record of non-executive decisions must include any conflict of interest declared by any member of full Council or the relevant committee when it resolved to confer the delegated power that is being exercised. This is well-intentioned gobbledegook. Although one school of thought is that “conflict of interest” has a wider meaning than under the Localism Act or the Code of Conduct, and that there is therefore an implicit obligation to set up a system to allow the HPS to grant a dispensation for these, whatever they are, most authorities will just record any declarations and dispensations under the Localism Act or their Code of Conduct and hope that that will be sufficient.

What decisions do officers have to record? Before 2012, the rules about executive decisions only applied to decisions taken by officers if they were key decisions. Under the 2012 Regulations they apply to all executive decisions, even those which, by definition, are not significant in financial or geographical terms. ACSeS (one of the predecessors of Lawyers in Local Government) sought Counsel’s opinion on the scope of this, and

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were advised that minor decisions can be weeded out by ignoring decisions that are not “closely connected” with the discharge of the function, but this is difficult to apply in practice. The CLG Guidance differentiates between executive decisions and “administrative and operational decisions officers take about how they go about their day to day work”, which is sensible, although the examples that they give are egregious and not very helpful.

The 2014 Regulations cover officers’ non-executive decisions which fall within the categories set out above. Again, the CLG Guidance says that administrative and operational decisions need not be recorded, and gives some peculiar examples. Potentially, though, all sorts of decisions will affect people’s rights and should be recorded. A tiny footnote adds “these decisions do not include decisions taken pursuant to an existing framework of rights”. No one knows what this means. In relation to contracts and expenditure, another footnote says that it is for the authority to decide what the threshold is for decisions that “materially affect” its financial position.

We recommend a common sense approach. Decisions which are purely administrative or operational can be ignored. So should spending, contracting and purchasing decisions (including executive decisions) below the “materiality” threshold, on which the Chief Finance Officer can advise and which should ideally be determined by a formal decision. Decisions over the threshold should be recorded. Decisions under powers delegated by a specific resolution should be recorded. So should decisions under specific delegated powers set out in the Scheme of Delegation. There will be grey area in between, which will need some thought, but there should not be a problem if this exercise is conducted carefully.

It is arguable that the Regulations require the production of a record of decisions even if the subject matter is exempt from public access, for example because it is about an individual – a service user or a member of staff, for example - or is commercially confidential. The two requirements are set out separately, and commercial confidentiality can evaporate over time. On the other hand, there is no point developing a vast bureaucracy around social care decisions, for example, if the reports are never going to be published. Authorities will have to make up their own minds on this.

How long do the records have to be kept? Agendas, minutes, written summaries of confidential and exempt items, reports that relate to items discussed in public, records of executive decisions and the record of a ward member non-executive decision have to be kept for six years.

Background papers must be kept for four years.

How are documents to be made available? Notice of a meeting must be posted at the authority’s office, and in the case of non-executive meetings at the venue if it is not an authority office.

Agendas, reports, records of decisions and background papers must be available for inspection at an authority office. They must be available “at all reasonable hours”. A “reasonable fee” can be charged for access to background papers, but otherwise access must be free of charge. Members of the public must be allowed to take copies of any of these documents, but may be charged a reasonable fee for copying facilities.

The notices of executive meetings, private meetings and key decisions, agendas and reports for executive meetings and decisions and background papers to executive reports must all be posted on

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the authority’s website, if it has one. So must the record of a non-executive decision taken by an officer, and the background papers.

Newspapers and the media can require copies of agendas and the like, the records of executive decisions, reports, the and any other documents available to members that the proper officer thinks fit, to be sent to them, but they have to pay for postage.

What sanctions are there for breaking the rules? It is a criminal offence if anyone holding a document which is publicly accessible under theses rules intentionally obstructs its inspection or copying, or refuses to provide a copy, without a reasonable excuse. This is a “level 1” offence and the maximum penalty is currently a £200 fine.

Failure to give the requisite notice of a meeting and so on may mean that the decisions taken at the meeting are unlawful and ineffective, although the courts generally adopt a pragmatic case-by-case approach to technical breaches. The process may be challenged through legal proceedings by a person affected by the decision, usually judicial review proceedings, or by intervention by the external auditor

Breach of the rules is likely to amount to maladministration.

Parish Councils

As usual, there are various bits and bobs in the air around parish and town councils.

In March 2014 the Government consulted on making a Legislative Reform Order to make it easier to set up a town or parish council. The three key proposals were: . Lowering the threshold of signatures required to make a valid petition: The specific amendments to section 80(3) of the Local Government and Public Involvement in Health Act 2007 Act will reduce the percentage of local government electors required to sign the community governance petition, to trigger a Community Governance Review, from 10 per cent to 7.5 per cent (and to reduce the proportions required for smaller electorates in line with that change). . Shortening the amount of time the Local Authority can take to complete a Community Governance Review: The amendments relate to introducing a time-limit from 12 months from the date the review begins, to 12 months from the date of receipt of the petition or application is supported by the outcomes of the public consultation. . Allowing Neighbourhood Forums to trigger a Community Governance Review: The amendments will give Neighbourhood Forums, with a Neighbourhood Development Plan under the Localism Act 2011 that has passed referendum, the right to submit an application for the creation of a new parish having the same weight as a submitted community governance petition.

Following the consultation the Legislative Reform (Community Governance Reviews) Order 2015 came into force on 26 March 2015. It brings into law the proposals set out above.

The Legislative Reform (Payments by Parish Councils, Community Councils and Charter Trustees) Order 2014/580 removed the requirement for every cheque or other order for the payment of money

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by a parish or community council to be signed by two members of the council. The Order also removes a similar requirement for charter trustees.

Section 42 of the Local Audit and Accountability Act 2014 enables Regulations to amend to provisions of the Local Government Act on Parish Polls. A December 2014 Consultation Paper seeks views on: . increasing the trigger for the number of electors needed to call a poll, to limit vexatious, unnecessary and otherwise inappropriate use . updating the voting arrangements to improve access and modernise the polling procedure to bring mechanisms in line with other local government polls; and . more closely defining the question on which a parish poll can be held to ensure questions posed are on appropriate local issues.

A statement in Parliament in October indicated that the Government intends to make a Legislative Reform Order permitting the electronic distribution of agendas to parish and town council members.

Petitions on yellow lines and parking charges

One of the Coalition Government’s first actions, in the name of “localism” (remember?) was to abolish the statutory duty to adopt a petition scheme. As every local authority had put a scheme in place, little use is made of petitions but removing them would cause a rumpus, this made no difference to anything.

Mr Pickles evidently believes that local government is mostly about bins, newspapers, transparency, flags and parking. He may be right, although we are not sure about flags. And so it was that on the 1 September 2014 he unveiled plans for another “right to challenge”, pulled petitions out of his back pocket, and issued a consultation paper on parking.

Yellow lines and parking bays are brought about by orders under the Road Traffic Regulation Act 1984, usually after public consultation. Section 1 of the Act lists the purposes for which orders can be made, revoked and amended: preventing danger, preventing damage to roads and buildings, helping traffic flow, restricting vehicles that are unsuitable for the road in question, and preserving and improving amenity and air quality. Section 122 says it is the local authority’s duty to exercise these functions “to secure the expeditious, convenient and safe movement of vehicular and other traffic (including pedestrians) and the provision of suitable and adequate parking facilities”, having regard to relevant matters such as access to premises, the effect on amenities (especially from HGVs), helping buses and bud passengers, and the national air quality strategy. Then there is a wealth of technical guidance, but generally successive governments have been content to let local authorities get on with it.

The new discussion paper says “there is public concern that some local authorities appear not to be using their powers to meet the best interests of road users, communities and businesses in their area. There are concerns about over-zealous parking enforcement and high parking charges driving people out of town centres, pushing up the cost of living and making it harder for people to park responsibly and go about their everyday lives. Inappropriate parking rules and enforcement also harm local shops and impose costs on local firms.” There are always concerns about parking. In any given location, some people will want more parking controls and some will want fewer. Businesses want people to be able to pull up outside their premises, motorists and residents in controlled parking zones want lower charges for on-street parking. More recently, parking charges have become the target for “protect the high street” campaigns, and some authorities are responding positively. 33

The debate has intensified since the “decriminalisation” of parking outside London under the Road Traffic Regulation Act 2004. Local authorities now enforce parking controls, penalise offenders and collect the penalty charges. They are supposed to set their charges so as to cover their operational costs, using any surplus for other highways and transport purposes. Successive court cases, most recently The Queen on the application of David Attfield v The London Borough of Barnet [2013] EWHC 2089, have made it clear that local authorities cannot plan to make a surplus: it must be a happy accident. But a recent RAC report said that 84% of the parking accounts were in surplus and that the aggregate surplus in England was £549 million. If our maths is right, that is about £3.7 million per authority. These are not big numbers. The LGA estimate that, if the current path of funding and expenditure continues to 2020, the savings that will have been made by local government will be in the range of £30-£40 billion. But Mr Pickles, true to form, said “These official figures show how town halls are committing daylight robbery by ripping off drivers with exorbitant parking charges and unfair parking fines.”

The first consultation exercise, in 2013, looked at the methods of enforcement, the use of CCTV, the award of costs in parking adjudications, discounts for prompt payment if you lose a parking appeal, and a mandatory 10 minute “period of grace” for on street parking. There were 836 responses, expressing a range of views on all these issue. There will be some tinkering in due course.

The discussion paper said: “The current processes are not easily understood or accessed by local residents or businesses, and the timeframe for reviewing policies is not linked to, or required to respond to, changes in local circumstances. This combines to create a perception that people have no say in parking in their area, or power to challenge decisions. Any new mechanism needs to give local residents, community groups and businesses the ability to engage effectively while recognising the responsibility of local authorities to put in place parking strategies that reflect the needs of all road users (including pedestrians, cyclists and people with disabilities), and the needs of residents, shops and businesses. Such a mechanism needs to be simple, fair and transparent. To meet this overall aim, the Government is proposing to introduce a requirement that in response to a petition from local residents and/or businesses, local authorities must review their specific parking policy in a specified location, and produce a report for consideration and decision by councillors in an appropriate public council meeting. This approach thus combines direct democracy (the right to petition and call a review) with representative democracy (elected councillors taking a decision, and then being held to account at the ballot box).”

Consultation closed on the 10 October. The Government published its response to the consultation responses in March 2015. This is obviously an issue of major public concern because there were 117 responses to the consultation (just 200 less than the number of people who voted for Al Murray in Thanet South at the general election) of which 51 (44%) were from local authorities. The government indicated that it would take the following action:

The Government will publish guidance for all local authorities adopting civil parking enforcement powers on putting in place a petition scheme that will allow local residents and businesses to challenge parking policies. This guidance will include best practice advice on the details of such a scheme, covering setting appropriate minimum thresholds for valid petitions, minimum requirements for information, the appropriate grounds for rejecting a petition, and managing the response to petitions. This guidance will be issued under Section 18 of the Traffic Management Act 2004.

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If the government had not abolished the requirement for authorities to adopt petition schemes then they would not need to do so.

In March 2015 the government also issued new Operational Guidance to local authorities; parking policy and enforcement. The guidance is in draft. It,  . sets out the government policy framework by which we believe local councils should be setting their parking policies . tells local councils of changes resulting from the introduction of the Traffic Management Act 2004 . advises enforcement authorities of the procedures to follow with regard to enforcing parking restrictions

New RIPA Codes of Practice

Article 8 of ECHR says that “everyone has the right to respect for his private and family life, his home and his correspondence” Interference must be “in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. Any invasion of privacy is likely to engage Article 8.

The Regulation of Investigatory Powers Act 2000 (RIPA) provides a legal basis for invasive investigation and a structured approach to ensure that it is only used for a legitimate aim, within Article 8, where it is necessary and suitable to achieve that aim, and where the action taken is appropriate. Although it is often portrayed as a “snooper’s charter” it is a shield rather than a sword. Public bodies have been undertaking investigations for many years; following the RIPA protocols ensures that they will be Article 8 compliant.

Although RIPA provides a mechanism for authorising the interception and use of communications, and “intrusive surveillance” by bugging homes and vehicles, these are limited to the police and security services. For local authorities, RIPA covers “covert human intelligence sources” (CHIS) and “directed surveillance” for enforcement purposes. A CHIS is someone used covertly to obtain and pass on information. This could be an informer with inside knowledge, but it could also include a young person making a test purchase of alcohol or a neighbour keeping a record of events next door. There needs to be a relationship between the authority and the CHIS, so someone who just contacts the authority with a complaint is not a CHIS. Directed surveillance is covert, but not intrusive, surveillance, which is conducted for the purposes of a specific investigation or operation, is likely to result in the obtaining of private information about a person, and is more than an immediate response to events. This includes eavesdropping, recording private conversations, organised surveillance of premises or the use of CCTV for the surveillance of particular individuals.

Local authorities can only use a CHIS or directed surveillance for preventing or detecting a criminal offence. The offence must either be punishable by six months imprisonment or involve the sale of alcohol or tobacco to children.

RIPA does not therefore cover public disorder, minor offences like byelaw contraventions, littering, dog control or fly-posting, or internal disciplinary investigations. That does not mean such investigations are unlawful, but it does mean that there is a risk of a breach of Article 8 and that there has to be a

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case-by-case analysis to ensure that any breach of privacy is justified and proportionate. A cautious approach is needed, because it is difficult to know where the boundaries are.

Under RIPA, prior authority for the CHIS or the directed surveillance is required from an authorised senior officer within the council. If it is likely that “confidential information” will be obtained, authority must be given by the Head of Paid Service or, if absent, his or her deputy. Information is confidential if it is “held in confidence relating to the physical or mental health or spiritual counselling of a person (whether living or dead) who can be identified from it”, relates to communications between a MP and a constituent or is confidential journalistic material.

The authority, and its purpose and the justification for it, are recorded in great detail. The authorising officer must be satisfied that the action is necessary and proportionate. The authority will be time limited and reviewed. Since 2012, local authorities have additionally been required to obtain approval from a JP.

An officer who is a member of the senior management team must have oversight of the process and be personally responsible for its operation. Statutory Codes of Practice contain detailed advice. They require that elected members should review the authority’s use of the 2000 Act and set the policy at least once a year. They should also consider internal reports on use of the 2000 Act on a regular basis to ensure that it is being used consistently with the local authority’s policy and that the policy remains fit for purpose. The Surveillance Commissioners regulate the system and make periodic inspections.

New draft Codes of Practice on covert human intelligence sources and covert surveillance were published in July for consultation purposes. The only substantive changes for local authorities reflect those arising from the Protection of Freedoms Act 2012, but this exercise is a useful reminder of the respective responsibilities of the authorising officer, the Head of Paid Service, elected members and the officer responsible for oversight of the system. At one stage the guidance indicated that this should be the monitoring officer, and some authorities have maintained this arrangement, although this is no longer appropriate unless the MO is a member of the senior management team. The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Code of Practice) Order 2014 SI 2014/3119 and the Regulation of Investigatory Powers (Covert Surveillance and Property Interference: Code of Practice) Order 2014 SI 2014/3103 brought the new codes of practice into force in December 2014.

The ordinary use of CCTV for traffic control and reactive policing is not covert, so does not amount to directed or intrusive surveillance. There is however a detailed code of practice for the use of CCTV and ANRS systems which advises on its use and the implications under Article 8 and the Data Protection Act. The ICO published a new “Data protection code of practice for surveillance cameras and personal information” (CCTV) in October 2014.

A new Code of Practice on the Acquisition and Disclosure of Communications Data was approved in March 2015.

Data sharing law and new FOIA exemption

In the early days of information management, there was a great deal of work on the principles and practice of data sharing, especially in the context of partnership working and crime and disorder. The aim was to ensure that sensitive and confidential information, including personal data, was only exchanged with bodies who would benefit from it, between people who had authority to release and 36

receive it, and subject to conditions controlling onward transmission to others. Most authorities signed up to information sharing protocols with key partners.

The emphasis has changed. The concern now, especially in the context of safeguarding and child protection, is to ensure that information is shared and used, and that there are no blockages. There is a tension between these two principles. The turnover in staff can mean that the protocols are out of date, or lost in the mists of time. But if there are no effective rules it is difficult to prevent leaks. The key sources now are the 2011 ICO Data Sharing Code of Practice and the simple checklists, set out below.

Data sharing checklist – systematic data sharing Scenario: You want to enter into an agreement to share personal data on an ongoing basis Is the sharing justified? Key points to consider: ▪ What is the sharing meant to achieve? ▪ Have you assessed the potential benefits and risks to individuals and/or society of sharing or not sharing? ▪ Is the sharing proportionate to the issue you are addressing? ▪ Could the objective be achieved without sharing personal data? Do you have the power to share? Key points to consider: ▪ The type of organisation you work for. ▪ Any relevant functions or powers of your organisation. ▪ The nature of the information you have been asked to share (for example was it given in confidence?). ▪ Any legal obligation to share information (for example a statutory requirement or a court order). If you decide to share It is good practice to have a data sharing agreement in place. As well as considering the key points above, your data sharing agreement should cover the following issues: ▪ What information needs to be shared. ▪ The organisations that will be involved. ▪ What you need to tell people about the data sharing and how ▪ you will communicate that information. ▪ Measures to ensure adequate security is in place to protect ▪ the data. ▪ What arrangements need to be in place to provide individuals ▪ with access to their personal data if they request it. ▪ Agreed common retention periods for the data. ▪ Processes to ensure secure deletion takes place. Data sharing checklist – one off requests Scenario: You are asked to share personal data relating to an individual in ‘one off’ circumstances Is the sharing justified? Key points to consider: ▪ Do you think you should share the information? ▪ Have you assessed the potential benefits and risks to individuals and/or society of sharing or not sharing? ▪ Do you have concerns that an individual is at risk of serious harm? ▪ Do you need to consider an exemption in the DPA to share?

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Do you have the power to share? Key points to consider: ▪ The type of organisation you work for. ▪ Any relevant functions or powers of your organisation. ▪ The nature of the information you have been asked to share ▪ (for example was it given in confidence?). ▪ Any legal obligation to share information (for example a ▪ statutory requirement or a court order). If you decide to share Key points to consider: ▪ What information do you need to share? – Only share what is necessary. – Distinguish fact from opinion. ▪ How should the information be shared? – Information must be shared securely. – Ensure you are giving information to the right person. ▪ Consider whether it is appropriate/safe to inform the individual that you have shared their information. Record your decision Record your data sharing decision and your reasoning – whether or not you shared the information. If you share information you should record: ▪ What information was shared and for what purpose. ▪ Who it was shared with. ▪ When it was shared. ▪ Your justification for sharing. ▪ Whether the information was shared with or without consent.

Against this background, the Law Commission has been at work. In July 2014 it reported to Parliament. The Commissioners conclude that there are problems with the form of the law relating to data sharing that could usefully be addressed, and also found evidence of problems which are not directly due to the form of the law, but could be alleviated by law reform. They recommended: 1. That a full law reform project should be carried out in order to create a principled and clear legal structure for data sharing, which will meet the needs of society. These needs include efficient and effective government, the delivery of public services and the protection of privacy. Data sharing law must also accord with emerging European law and cope with technological advances. The project should include work to map, modernise, simplify and clarify the statutory provisions that permit and control data sharing and review the common law. 2. The scope of the review should extend beyond data sharing between public bodies to the disclosure of information between public bodies and other organisations carrying out public functions. 3. The project should be conducted on a tripartite basis by the Law Commission of England and Wales, together with the Scottish Law Commission and the Northern Ireland Law Commission. They now await the Government’s response. In the nature of their work, this might take a while.

A new research exemption in the FOIA came into force on 1 October 2014. The change means that information is now exempt from being released in response to an FOI request if: . it was obtained in the course of, or derived from, a programme of research; . the programme is continuing with a view to publication, by a public authority or another person, of a report of the research; and

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. disclosure under the FOIA before the publication date would or would be likely to prejudice: o the programme, o the interests of any individual participating in the programme, o the interests of the authority which holds the information, or o the interests of the authority that will publish the report, if that is different to the one that holds the information. This is a qualified exemption which means that authorities will still need to consider the public interest test before reaching their final decision. The exemption is covered in the Intellectual Property Act 2014 and the instrument bringing it into force is the Intellectual Property Act 2014 (Commencement no. 3 and Transitional Provisions) Order 2014/2330. The research exemption is in the new section 22A of the FOIA.

Transparency and interference

Transparency

The coalition government commitment to transparency is reflected in a series of initiatives recommending publishing lists of spending over £500, publishing new contracts and tenders on line and publishing senior salary information, despite DPA concerns.

This became the statutory Code of Recommended Practice for Local Authorities on Data Transparency issued under section 2 of the Local Government, Planning and Land Act 1980 in September 2011. It contained: . General principles – data publication should be demand led, open to web access in different formats and timely. . Advice that information provided should include as a minimum: o Expenditure over £500, (including costs, supplier and transaction information). Any sole trader or body acting in a business capacity in receipt of payments of at least £500 of public money should expect such payments to be transparent. o Senior employee salaries, names (with the option for individuals to refuse to consent for their name to be published), job descriptions, responsibilities, budgets and numbers of staff. ‘Senior employee salaries’ is defined as all salaries which are above £58,200 and above (irrespective of post), which is the Senior Civil Service minimum pay band. Budgets should include the overall salary cost of staff reporting to each senior employee. o An organisational chart of the staff structure of the local authority including salary bands and details of currently vacant posts. o The ‘pay multiple’ – the ratio between the highest paid salary and the median average salary of the whole of the authority’s workforce. o Councillor allowances and expenses. o Copies of contracts and tenders to businesses and to the voluntary community and social enterprise sector. o Grants to the voluntary community and social enterprise sector should be clearly itemised and listed. o Policies, performance, external audits and key inspections and key indicators on the authorities’ fiscal and financial position. o The location of public land and building assets and key attribute information that is normally recorded on asset registers and

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o Data of democratic running of the local authority including the constitution, election results, committee minutes, decision - making processes and records of decisions.

In 2012, Government consulted on changing the code, outlining probable new requirements relating to asset inventories contracts, TU facility time, parking charges, payments to councillors and credit card use, and suggesting that Regulations be made under section 3 of the 1980 Act to make compliance with all or part of the Code mandatory. The Response to Consultation was published in December 2013.

The new Local Government Transparency Code was issued in October 2014, accompanied by a paper on Frequently Asked Questions giving general and detailed advice. It applies to a long list of different types of “local authority”, but not parish councils with a turnover of less than £25,000. It builds on the old code, as set out below. . General principles – data publication should be demand led, open (promoted, publicised and accessible) and timely. . An appendix listing the additional data sets recommended for publication in addition to those contained in the Code, and another on anti-fraud measures. . General comments: o Recommending risk assessment to reduce the risk of payment fraud from data production. o Suggesting a pragmatic and proportionate approach to data protection issues. o That publishing the details of contracts required by the Code does not prejudice procurement or commercial confidentiality unless the contract contains a confidentiality clause, and such clauses should contain a carve-out for complying with the Code. o That disclosure should not contravene the legislation on “confidential” and “exempt” information under LGA 1972 etc. o That it is a matter of choice whether to rely on FOIA, DPA and EIA exemptions, the presumption should be openness and the exemptions should only be applied if “absolutely necessary”. o Errors in data accuracy should not cause delay but should be put right. o The method of publication must allow re-use and copyright and data ownership restrictions must be made clear. . Information which must be published quarterly: o Expenditure over £500. Invoices, grants and grant payments, grant in aid, expense payments, payments for goods and services, rent, credit notes and transactions with other public bodies, excluding staff salaries but including payments to individual contractors, all consistent with LGA guidance. And for each item, the date, department, beneficiary, purpose, amount, irrecoverable VAT and merchant category (eg computers) o Government Procurement card transactions. Giving the same details. o Procurement. Every ITT over £500 including reference, title, description of goods/services, start, end and review dates, department. Every contract, commissioned activity, purchase order, framework agreement etc over £500. Giving the same details plus supplier (and if it is a SME or voluntary or community sector organisation and its reference number), spend over whole contract or annually, irrecoverable VAT, whther there was an ITT or Invitation to Quote. . Information which must be published annually (by 2 February 2015 and thereafter annually no more than a month after the end of the year to which it relates): o Land and building assets. Service and offices, leasehold and freehold, properties occupied under PFI, all other properties owned or used, garages (not rented to

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householders), surplus, sublet and vacant properties, undeveloped land, service or temporary offices occupied for over three months, future legal commitments. But not social housing, rent free properties provided by traders, railways, canals, operational highways, assets of national security or inappropriate assets like refuges. In each case the UPN and asset ID, name, street number or name, post town, postcode and map reference. The nature of the authority’s interest must also be given (eg leasehold). o Grants to the voluntary community and social enterprise sector, either by tagging expenditure and procurement information or listed separately. In each case the date, time period, department, beneficiary and its registration number, purpose and amount. o Organisational chart of the staff structure of the local authority (top three tiers) including grade, job title, department/team, permanent or temporary, contact details, salary band and maximum salary for grade. o Trade union facility time. Number and fte number of TU representatives of all kinds, number and fte number of those devoting at least 50% of time to TU duties, names of Tus represented, basic estimate of spend (days x average salary) as a figure and as a %age of the pay bill. o Parking account. Break down of income and expenditure and of how any surplus is spent. o Parking spaces. Numbers of off and on street spaces or an estimate if parking areas not set out in bays. o Senior employee salaries. Information under the Accounts and Audit Regulations: numbers receiving over £50,000 in £5,000 bands, remuneration and job title of certain employees receiving over £50,000 and name of those receiving over £150,000, plus a weblink to a list of the responsibilities and details of bonuses and benefits of those receiving over £50,000. o Constitution must be on the website. o The ‘pay multiple’ – the ratio between the highest paid salary and the median average salary of the whole of the authority’s workforce as in the Pay Policy Statement, with guidance as to the calculation o Fraud. Number of occasions statutory anti-fraud powers used to require the provision of information, number and fte number of employees investigating and prosecuting fraud, and of accredited specialists, total spend and number of cases investigated. . Information to be published once only o Details of existing waste collection contracts. Same details as other contracts. . Information recommended for publication in addition to the information that must be given. o Expenditure data: Monthly or real-time not just quarterly. Threshold of £250 instead of £500. All corporate credit cards, not just the Government Procurement Card. Total amount spent on remuneration. Add CIPFA classification to expenditure data. o Procurement information: Monthly or real-time not just quarterly. ITT threshold of £500 instead of £5,000. Invitations to quote as well as ITTs. Full copies of contracts over £5,000 or a summary if contract “runs to several hundred pages”. Company registration numbers. Geographical coverage of contracts. Performance against contract key performance indicators. Information disaggregated by voluntary or community sector category (eg company, charity, CIC, IPS, housing association). o Land: Monthly or real-time not just quarterly. Publish on Electronic Property Information Mapping Service. In relation to each asset, its gross internal area, services offered from it by government service list categories, reason for holding it, whether it is listed as an asset of community value and/or to be transferred to the community, total

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revenue costs, cost of maintenance required, functional suitability (good, satisfactory, poor or unsuitable), energy performance rating. o Parking spaces: number of spaces provided free or at a charge. o Organisation chart: For all employees with a salary over £50,000 not just top three tiers. Salary band for each employee listed. Information about current and upcoming vacancies. o Grants: Monthly or real-time not just quarterly. Information disaggregated by voluntary or community sector category. o Fraud: numbers of cases investigated and where fraud or irregularity identified and value of fraud or irregularity detected and also recovered. o Method of publication: local authorities are recommended to move from “one star” (on the web with an open licence” through to “three star” (structured data eg on Excel, plus using a non-proprietary format).

Some data (councillor allowance and expenses, relating to decision-making and audit reports) has been dropped but publication is required under different legislation, and the Government has decided not to require the publication of performance information because it smacks of the old performance management regime. The Code still either requires or recommends the publication of thousands of data items. There has been some additional “new burdens” funding to cover the cost and an indication that this could be reviewed.

Two SIs under section 3 of the Local Government, Planning and Land Act 1980 made publication of the mandatory elements obligatory from the 25 June and 31 October 2014 respectively: the Local Government (Transparency) (Descriptions of Information) (England) Order 2014/2060 and the Local Government (Transparency Requirements) (England) Regulations 2014/2680. They specify: . For all local authorities, information about any expenditure incurred and about any legally enforceable agreement entered into and any invitations to tender for such agreements . For all authorities except parish councils with a budget of less than £6.5 million, the rest of the mandatory information required by the Code. The Code will be enforced by a complaint to the authority or its Monitoring Officer, a complaint to the Ombudsman, judicial review or a Freedom of Information Act complaint to the Information Commissioner.

In December 2014 Local Government minister Kris Hopkins MP wrote to Rother District Council’s Leader, Cllr Carl Maynard: “Regulations require that expenditure on remuneration for certain senior staff must be reported in an authority’s annual Statement of Accounts. That information must be set out according to particular categories, including the total amount of compensation paid for loss of employment paid to each relevant employee. In order to comply with these requirements, most authorities include all relevant payments under each category in a single table, arranged by individual. I understand that this was not the approach that your council took in its accounts for 2013-14. Instead, redundancy payments made to your ex-chief executive and two heads of service are included only within a table collating exit payments by cost band and are not accounted for separately. We do not believe that this approach is line with the requirements of the regulations.” … “Importantly, the council’s current approach would not enable local taxpayers to easily identify the level of payments made to departing senior staff. I would be grateful then if you could provide an explanation of your current approach, particularly if the council has made local taxpayers aware in some other way of the amount spent on these payments.”

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The Government consulted on a separate Code for parish councils with a turnover of less than £25,000 and it came into effect on 1 April 2015.

And, if that were not enough, in December Mr Pickles responded to a select committee report on senior pay in local government by indicating that local authorities could be required to set out how they appraise the performance of their highest paid staff, and would also have to explain the reason behind bonuses and how they dealt with poor performance. He said that he had instructed DCLG officials to examine how the Local Government Transparency Code 2014 might be amended to bring in the changes. In his usual friendly fashion, he said: “When we came to power hundreds of directors, executives and strategists were lining their pockets with hardworking families’ cash. But this government’s focus on excessive pay grounded pay rises received by senior council staff which had soared out of control during the noughties. “But there is still more to do and councils should be focusing resources on protecting frontline services and keeping Council Tax down rather than throwing away taxpayers’ money. “Local taxpayers would be shocked to learn their council still has many highly paid staff on its payroll while pleading poverty and seeking to increase Council Tax. The gravy train is over and town halls must prove to hardworking families they are getting value for money from top earners.”

In February 2015 the government issued the Local Government Transparency Code 2015 was issued. This essentially repeated the 2014 Code but added a requirement to publish valuation information about social housing assets annually.

In March 2015 Kris Hopkins, the Minister for Local Government, wrote to the Leader of Rother District Council advising the he was minded to withhold new burdens payments from the Council as a result of its failure to comply with the requirements of the transparency code.

Freedom of information

The case of Innes v Information Commissioner and Buckinghamshire County Council [2014] EWCA Civ 1086 has clarified the rights of members of the public to require information to be provided in a specific software format.

Section 11 of the Freedom of Information Act 2000 provides: "Means by which communication to be made (1) Where, on making his request for information, the applicant expresses a preference for communication by any one or more of the following means, namely— (a) the provision to the applicant of a copy of the information in permanent form or in another form acceptable to the applicant, (b) the provision to the applicant of a reasonable opportunity to inspect a record containing the information, and (c) the provision to the applicant of a digest or summary of the information in permanent form or in another form acceptable to the applicant, the public authority shall so far as reasonably practicable give effect to that preference. (2) In determining for the purposes of this section whether it is reasonably practicable to communicate information by particular means, the public authority may have regard to all the circumstances, including the cost of doing so. (3) Where the public authority determines that it is not reasonably practicable to comply with any preference expressed by the applicant in making his request, the authority shall notify the applicant of the reasons for its determination. 43

(4) Subject to subsection (1), a public authority may comply with a request by communicating information by any means which are reasonable in the circumstances."

Mr Innes made a very wide-ranging request for education data. The County Council said it would be too expensive to comply with it, leading to correspondence about how the request might be refined. Ultimately Mr Innes asked for information “in Excel format”. The Council provided PDF copies of Excel spreadsheets, which could not be manipulated or processed. The Information Commissioner and The First Tier Tribunal rejected Mr Innes’s complaint on the ground that “although an applicant can ask for an electronic copy they are not entitled to specify down to the next level, the specific software format”. The Court of Appeal found, on a purposive interpretation of the Act, and with some hesitation, that Mr Innes was entitled to specify the software format.

This does not, of course, necessarily mean that local authorities are obliged to create extensive spreadsheets at the request of a member of the public. The “reasonably practicable … having regard to … the cost” criterion still applies.

On 16 April Advocate General Sharpston of the ECJ gave her opinion in the case of East Sussex County Council v Information Commissioner Case C-71/14 on the ability to charge for the provision of environmental information. Her interpretation of Article 5(2) of Directive 2003/4 was that a “reasonable amount” would be based on the costs actually incurred by supplying the requested information. This, she said, could include the time spent by staff on searching for and producing a response to the request, however, it would not include overheads such as heating or lighting as such costs could not be inherently linked to the supply of information for any one particular request.

Background papers

The case of R (on the application of Joicey) v Northumberland County Council and R&J Barber Farms Ltd [2014] EWHC 3657 (Admin) illustrates starkly the importance of some longstanding features of local authority transparency legislation.

Mr Joicey campaigns against Northumbrian wind farms which he believes to be poorly located, with the assistance of a neighbour, Dr Ferguson. R&J Barber Farms Ltd applied for planning permission for a single turbine in Brackenside Farm, a rural location near to the six-turbine Barmoor wind farm, which has planning permission but which has not yet been constructed. The County Council is the planning authority for the development. Its first two attempts to grant permission for the Brackenside turbine were challenged, and set aside by agreement. The Council had misstated the distance from Barmoor, failed to carry out EIA screening, and (on both occasions) imposed a defective noise condition and failed to consult English Heritage on the impact on a nearby listed building. Would it be third time lucky?

Since 1985, under sections 100B and 100D of the Local Government Act 1972, local authorities have had to make committee reports open to inspection by the public at their offices before the committee meeting. Reports must include a list of the “background papers” relied on by the author in preparing the report, and those background papers must also be available to the public. This should happen at least five clear days before the meeting, unless the meeting is convened, or the item in question is added to the agenda, at shorter notice. Some planning authorities just say that the whole planning file will be available (which can cause embarrassment if it contains informal notes) and others conscientiously list the relevant papers. The Council usually lists background papers but, unfortunately, something went wrong in this case. 44

Objectors had expressed concern about the noise of the Brackenside turbine, when added to the noise from the Barmoor wind farm. The applicant engaged consultants to prepare a noise assessment. The Council received the noise assessment on the 21 August 2013. The Council’s Statement of Community Involvement, published under Section 18 (1) of the Planning and Compulsory Purchase Act 2004, undertook that “Once a valid planning application has been received we will …Publish details of the application with supporting documentation on the council website.” However, the planning officer hit an IT snag and unknowingly failed to upload the assessment onto the website.

The Planning Committee report was made available on the 23 October, ahead of the meeting on the 5 November. It recommended approval, and mentioned the noise assessment, but it contained no list of background papers. Dr Ferguson telephoned to ask if there was a new noise assessment, but received no immediate reply. He visited the planning office on the 1 November, asked to see the file, and was given some papers which did not include the assessment, because the files were not in order. On the 4 November another planning officer returned from leave, placed the assessment on the website, backdating it to the date of the first attempt to upload it, and told Dr Ferguson. The outcome was that Dr Ferguson and Mr Joicey first saw the report 36 hours before the meeting. At the meeting, Mr Joicey was given five minutes to address the committee. He commented on the noise assessment, amongst other things. The committee resolved to grant permission but delegated power to word the conditions to the planning officer, so that he could take legal advice. The Council consulted the objectors before settling the conditions, and Mr Joicey (who had by now obtained expert advice which was critical of the noise assessment) replied that permission ought not to be given. Nevertheless, permission was granted, and Mr Joicey sought judicial review.

The claim was based on six grounds. One related to the non-availability of the noise assessment, and we will return to this later. Two of the others alleged that the planning guidance against which the noise assessment was judged had been misapplied. The guidance allowed higher noise levels if the “occupiers” of the properties affected had a “financial involvement” in the turbines in question, because they could be expected to tolerate more disturbance. The Judge, Cranston J, found that whilst the owner-occupiers of the farm buildings, including those rented out for holiday lets, were occupiers with a financial involvement, the longer term tenants of other houses around Brackenside did not have a financial involvement, even though the applicants were their landlords, so the higher noise levels should not have been used. The other grounds of challenge were, however, rejected.

So far as the noise assessment was concerned, it was plain that the requirements of the legislation had not been complied with, and in addition the Judge found that the undertaking in the Statement of Community Involvement gave rise to a legitimate expectation that the assessment would be placed on the website, which had not been met. The Council argued that Mr Joicey had seen the report, had commented on it at the meeting, and would not have done anything different if he had had more time. The Judge said that 36 hours was not long enough to digest a 72 page technical report and prepare and précis a critique which could be fitted into a five minute presentation. He said “With more time than 36 hours I have no doubt that [Mr Joicey] could have done more. Given the history of the matter, noise went to the heart of the committee’s decision and not tangential.” Then the Council argued that the committee would have come to the same conclusion in any event. The Judge reviewed the case law and said that the Council had to establish the committee would inevitably have come to the same conclusion. On the facts, this test was not met, and “Finally, there is the decision-maker in this case. It was a committee of politicians where the vote was not whipped. It is a very bold person who will hazard that in such circumstances a particular result is inevitable.” Thirdly, the Council said that any prejudice had been remedied by the consultation on the condition. The Judge said that consultation was too limited and too late. Finally, the Council maintained that Mr Joicey had not personally suffered

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any prejudice, so that, although he might have standing to bring the proceedings, the Court should use its discretion to refuse relief. The Judge rejected this argument, saying that this was a serious breach of the Council’s obligations and referring in particular to the misleading way the assessment had been backdated on the website. The decision was set aside.

Whether you call it transparency, access to information or (as in this case) “the public’s right to know”, the obligations placed on local authorities throughout the decision-making process are notoriously exacting and intricate. They become more onerous year by year. Budget cuts and staff reductions increase the risk that simple mistakes will be made: the failure to upload the assessment, the backdating, the absence of the list of background papers on the report and the inspection of an incomplete file. But this case demonstrates very clearly that process errors which prejudice a planning objector will lead to an unlawful decision, and that the Courts will be reluctant to accept that the outcome would have been the same if they had not occurred.

Intervention, Tower Hamlets, Rotherham and others

The Secretary of State has used his powers under the “best value” provisions of the Local Government Act 1999 and the Growth and Infrastructure Act 2013 to intervene formally in the discharge of a number of authorities. First we had Doncaster MBC’s functions and Blaby DC’s planning functions. In 2010 Doncaster was subjected to statutory intervention in which the council was overseen by three commissioners, following what Mr Pickles described as “serious failings in the council’s corporate governance”. The intervention was scheduled to end on 31 July 2015, but a favourable peer review report in June 2014 and the transfer of children’s services to a children’s services trust led to the end of the formal intervention in November. Blaby was released from “special measures” when its performance – in terms of the percentage of major applications determined within 13 weeks – improved from 18%, against a current DCLG threshold of 40%, to 62%.

Tower Hamlets was next.

“I am a fan” said David Cameron at Prime Minister’s Questions in June 2014 “of directly elected mayors”. Presumably, though, there are one or two exceptions. Lutfur Rahman was elected Mayor of Tower Hamlets in 2010, and re-elected in May 2014. On the 4 November 2014 Eric Pickles, Secretary of State for Communities, former Leader of Bradford City Council, and MP for Brentwood and Ongar (a few miles up the A12 from Tower Hamlets) told the House of Commons that he proposed to appoint commissioners to exercise a number of the Council’s functions. He said “…there can be no place for rotten boroughs in 21st-century Britain” and “There is a clear picture that there has been a fundamental breakdown of governance in this mayoral administration. … If I was the mayor of Tower Hamlets, I would be hanging my head in shame, because what he has allowed to occur in Tower Hamlets is shameful”, adding carefully – because the Council had been given 14 days to comment on his proposal – “not that I have made a final decision.”

Tower Hamlets and Mr Rahman are engaged in an epic battle with Mr Pickles and his department, redolent of 1980s politics and pay-per-view TV boxing. Mr Pickles attacks with new legislation. It is a long time since his claim that “localism is the principle, the mantra that defines everything we do”. Tower Hamlets counter-attack through the courts. But in November Tower Hamlets lost the latest round in the courts.

Mr Pickles’ opening shot was about Council publicity, especially its free newspaper, East End Life. Ofcom ruled in 2013 that the Council’s adverts on local TV were political, and breached the 46

Communications Act 2003 and the UK Code of Broadcast Advertising. CLG Minister Brandon Lewis complained that the newspaper breached the latest version of the Recommended Code of Practice on Local Authority Publicity, that it was not objective or even handed, and that it was published weekly instead of quarterly. Using new powers under the Local Audit and Accountability Act 2014, CLG sent formal notices to Tower Hamlets and a few other authorities in April 2014, and again in September 2014, warning them that a direction would be made obliging them to reduce the frequency of their newspapers. The direction has not yet been made, but it can only be a matter of time.

Away from the main event, the Electoral Commission has expressed concern about the risk of electoral fraud in Tower Hamlets, and it issued a critical but essentially helpful report about the speed of the count in the 2014 elections. Electoral administration is not the responsibility of the elected mayor, of course. An election petition contesting the outcome of the 2014 mayoral election is awaiting a hearing, having survived a legal challenge by Mr Rahman. The Information Commissioner is monitoring the speed of the Council’s response to FOI requests. And to complete the undercard, Mr Pickles cited “Tower Hamlets Council barring a 71-year-old resident from filming due the risk of ‘reputational damage’ to the authority” as one of the reasons why new legislation was needed to oblige local authorities to allow their meetings to be filmed.

The top of the bill opened with a BBC Panorama programme on the 31 March 2014 alleging that the Council had allocated grants to community organisations for political purposes. Tower Hamlets hired specialist lawyers and PR consultants, and attempted unsuccessfully to halt the programme because of its proximity to the Mayoral election. A few days later, Mr Pickles used new powers under the Local Audit and Accountability Act 2014 (again) to appoint inspectors to investigate whether the Council was complying with its best value duty under the Local Government Act 1999, “following the receipt of a number of documents”. The documents were passed on to the police, who found “no evidence of criminality”. The Council said it had referred the matter to the police itself, ahead of the Panorama programme. It asked for the papers, but seems to have received an incomplete response. It challenged the appointment of the investigators, but permission for an application for judicial review was rejected, on the ground of delay in bringing the proceedings. It sought to renew its application at an oral hearing, and the decision in that application is reviewed below. Meanwhile, the process ground on.

PriceWaterhouseCoopers (PWC) conducted the investigation, at a cost (to Tower Hamlets) of just under £1 million. Mr Pickles said it would have been cheaper if the Council had been less obstructive, and it is evident from the report that PWC and the Council were at times at loggerheads about which documents – privileged legal advice for example – could be accessed. The report was published on the 4 November. It runs to over 200 pages, albeit rather repetitively as successive sections review the same issues in increasing depth. In short, their findings are these. 1. First, the Council’s process for awarding grants failed to meet the best value duty. There was a lack of transparency as to the rationale for grant decisions, the evaluation methodology and in particular the application of the relevant criteria, with some organisations which had not met minimum standards receiving grants, and a high proportion of member-led decisions. There had, so far, been no external review of the process, despite a call from an Overview and Scrutiny Committee for a referral to the external auditor, although an internal review is taking place. There were gaps in the monitoring of grant recipients. 2. Second, PWC selected four property disposals for detailed examination, and found best value failure in three of them. In the sale of Poplar Town Hall, the Council preferred a bid which was marginally late, and which was, again by a small margin, not the highest. It concluded the selection process with a contract race, which seems to have got so messy as to defeat its purpose.

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And there was, “as a matter of fact”, an indirect business connection between the winning bidder and an organisation that assisted the Mayor in his election campaign, although it was unclear whether anyone in the Council knew about it. Sutton Street Depot was also sold to a late bidder, and in a way that could have exposed the Council to unnecessary cost and loss of rental income. This was not the highest bid, but the bidder offered community benefits and it was “not evident that other bidders were asked to provide such information”. Then in the lease of a property at Mellish Street, only two bids were ultimately considered, and one of the bidders was a consortium member of the other, giving rise to a risk (but no evidence) of collusion, and the Council’s initial assessment of the rental value was higher than the bids, which offered community benefits which the Council had no formal model for valuing. 3. Third, unsurprisingly, PWC found best value failures in relation to publicity. They criticised the television advertisements which fell foul of Ofcom, as you might expect. On balance they did not criticise the engagement of external advisers in connection with the Panorama programme, but they expressed concern generally about the risk that the demarcation line between the interests of the Council and those of the Mayor, in his political capacity, could be crossed. They did not find that it had been, but they said that there was a “lack of control around the monitoring of the demarcation of activities, based on a lack of clear documentation” and commented that the Council devoted “considerably more resource to seeking to counter the [Panorama] allegations made and/or challenge or undermine those making them than it did in seeking to determine whether or not there was any substance to the allegations.” 4. Fourth, there was no breach of the best value duty in relation to contracting, although there were some weaknesses. 5. Fifth, there were governance failures, again not identified directly but arising by implication from the inability to prevent the other failures, and from a “tendency towards denial or obfuscation rather than an inclination to investigate concerns raised”.

Whether all this, after a six-month investigation, justifies Mr Pickles’ “rotten borough” tag, all the other invective, and the formal intervention, is a matter of opinion. To some, this will be clear evidence of failure, with a hint of impropriety. But community grants are always challenging. The bureaucracy around evaluation and monitoring is intricate and awkward, and if staff resources are tight can easily fray at the edges. If members then start to pick at the process, it can unravel, and members will always have their pet organisations, which they favour, and which favour them by allowing them a community platform, and there is nothing wrong in that. Property disposals can be tricky, particularly selling off old Council buildings in an uncertain market. It is entirely permissible to accept a lower price against community benefits which satisfy well-being objectives, and no surveyor will find it easy to translate those benefits into money terms. In both cases the outcome can be very suspect, but so far the police have been content with what they have seen. Many communications teams struggle with the demarcation line between politics and promoting the authority and the area, and the “newsroom” culture tends to be document-averse. The comment that the Council is more interested in defending its corner than in examining its weaknesses may be fair, but what else would you expect in such an adversarial exchange? And the governance failure arises only by inference. A number of beleaguered inner-city authorities must be thinking “there but for the grace of God…”.

Mr Rahman said that these were process and governance issues, which could be addressed. Mr Rahman is an Independent, with Labour coming second in the elections, so politically he has few friends in Parliament, and Mr Pickles has not pulled his punches. He said he would use his powers under the Local Government Act 1999, as amended by the Local Audit and Accountability Act 2014, to appoint commissioners to exercise certain Council functions.

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Mr Rahman said that the actions were unjustified and politically motivated. The Council’s formal response is that the proposals are excessive.

The Council’s renewed application for permission to seek judicial review of Mr Pickles’ decision to appoint PWC was heard by Goss J. He gave judgement in R (on the application of London Borough of Tower Hamlets v SoS for Communities and Local Government on the 14 November. The judgment. It recites not only the events prior to the PWC appointment but also their report and Mr Pickles’ Parliamentary statement on his intervention proposals.

There were two issues. First, should the application be rejected on the grounds of delay? Judicial review proceedings must be brought “promptly, and in any event not later than three months after the grounds to make the claim first arose”, unless the Court decides to extend time. These proceedings had been started just within the three months, but arguably not as promptly as might have been possible. The Council said that it had been unable to act earlier because the pre-election “purdah period” precluded controversial decisions. Goss J said that delay was not a ground to refuse the application, but felt that the passage of time between Mr Pickles’ announcement and the proceedings, and the fact that the Council had not sought an expedited hearing or an injunction, while the investigation continued at substantial public expense, impinged on the strength of the claim.

Second, was there an arguable case that Mr Pickles had acted unlawfully? The Council’s case was that Mr Pickles had failed to give adequate reasons, or to explain, in a way they could understand, which areas of governance fell to be inspected, so they had been unable to determine if there had been a rational basis for the decision. Goss J said that there was no express statutory duty to give reasons, but there was a common law duty of fairness and natural justice. The statutory duty was no more than to identify whether, in general terms, the local authority had performed its “best value” duties under section 3 of the Local Government Act 1999 “to make arrangements to secure continuous improvement in the way in which its functions are exercised, having regard to a combination of economy, efficiency and effectiveness”. This was a very broad concept, see R (on the application of Nash) v Barnet LBC [2013] EWHC 1067 (Admin) – a case in which a challenge to Barnet’s outsourcing programme alleging failure to consult local representatives on how to fulfil the duty in accordance with section 3(2) would have succeeded but for, ironically, the delay in bringing the proceedings. Goss J said that when concerns were raised about fraud there had to be concerns about economic issues, efficiency and effectiveness. The reasons given were sufficiently precise, even though some confidential material had been withheld, and much of the material was in the public domain anyway. The Council could not credibly claim to be in the dark, and its claim was unarguable.

It was never going to be easy to succeed with a claim based on an argument that you did not know what the Secretary of State was on about when, in the events that had occurred and with the benefit of hindsight, it was perfectly plain. Tower Hamlets lost this round.

The statutory directions were given, and two of the three Commissioners were appointed, on the 17 December 2014. The commissioners are Sir Ken Knight, the former London Fire Commissioner and Chief Fire and Rescue Advisor to the government and former Hackney chief executive Max Caller, the current chairman of the Local Government Boundary Commission for England.

The directions are in force until March 2017 and require: 1. The Council and the commissioners to draw up an action plan within three months, based on the following interventions, reporting on progress to CLG every six months:

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. The Council must recruit a permanent Head of Paid Service, Monitoring Officer and Section 151 Officer, agreed by the commissioners, instead of the present interim appointments, and refrain from dismissing, suspending or sidestepping them unless the commissioners agree. . The Commissioners will exercise the Council’s grant-giving powers, having regard to the Council’s views, and with the Council’s assistance. . Property disposals, other than individual houses, must be approved by the commissioners. . The Council must agree a costed plan for publicity with the commissioners, deliver it, and adopt any recommendations the commissioners may make. . The Commissioners will exercise the Council’s powers of appointing an electoral registration officer and a returning officer for elections (this is a response to the Electoral Commission’s reports, not PWC). . The Council and the commissioners will prepare a plan for addressing the contracting weaknesses identified by PwC. It must seek the agreement of the commissioners before entering into any contract contrary to a statutory officer’s recommendation. 2. The commissioners to exercise all Council functions of the council relating to the making of grants, including responding to Freedom of Information Act requests in respect of grant payments, with the council providing at the request of the commissioners its views on proposed grants. 3. The commissioners to exercise until 31 March 2017 the council’s functions of appointing persons to and removing them from the posts of Electoral Registration Officer and Returning Officer for local elections (this will also apply to their general election duties).

Mr Pickles said that the Council will be required to comply with the commissioners’ instructions in relation to the exercise of those functions, and to provide the commissioners at its expense with support, and with access to the council’s premises, documents, employees or members. The council will also be required to pay the commissioners’ reasonable expenses and such fees as Mr Pickles determines.

In April 2015 the election of Mr Rahman as mayor of Tower Hamlets in 2014 was declared void by the election court as a result of findings that Mr Rahman and his agent Alibor Chaudhury engaged in corrupt and illegal practices (Earlam v Rahman [2015] EWHC 1215 (QB)).

Four Tower Hamlets residents, Andy Erlam, Angela Moffat, Azmal Hussein and Debbie Simone, lodged a petition challenging the result of the 2014 mayoral election. The outcome was an election court hearing before Richard Mawrey QC, sitting as an Election Commissioner and thus as a judge of the High Court. The petitioners claimed that Mr Rahman and his agents had committed “corrupt and illegal practices”, contrary to the Electoral Representation Act 1983. A claim that the returning Officer, John Williams, had failed to conduct the election properly was abandoned, and any criticism of him was withdrawn.

In his judgement Mr Mawrey described the relevant election law in considerable detail, explaining the nature of an election petition and the consequences of a finding of “corrupt” or “illegal” practices, the difference between the two, the standard of proof, the circumstances in which a candidate or agent can be guilty of election offences either personally or through those people deemed to have been his or her “agents”, and the criteria for and consequences of a finding of “general corruption”. He gave a full account of the chequered political history of the borough, including the relationship between Mr Rahman and the Labour Party, the circumstances surrounding his standing as an independent candidate, the demographic, racial and religious background and the formation of the “shambolic”

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Tower Hamlets First party, which, he concluded, could fairly be described as Mr Rahman’s “one man band”.

He held as follows: (1) Mr Rahman was not a reliable witness. He was “evasive and discursive to a very high degree”. (2) In election law, a candidate is accountable for the actions of his or her “agents”. This included not only the official agent, Mr Choudhury (Mr Rahman’s “hatchet-man” and a “very unsatisfactory witness” according to Mr Mawrey), but also the other THF candidates, Council staff in the Mayor’s Office, canvassers and supporters outside polling stations. (3) There were a number of false registrations: “ghost voters” and voters registered at addresses where they did not live. Three, potentially four, THF candidates, were guilty of false registration and “… there is no meaningful alternative to a finding that most, if not all, of the false registrations were organised by persons who were agents [of Mr Rahman]”. (4) Therefore, if a vote was cast in those names, there was “personation” and on one occasion when a vote was apparently cast twice, either personation or “false voting”. “Personation” is voting when you are not entitled to, and is a “corrupt practice”. “False voting” is a phrase used by Mr Mawrey to cover a range of offences, including double voting, which are generally “illegal practices”. (5) There had been postal vote fraud, in the form of intercepting and completing postal vote papers for the voter (personation) and “… it would be perverse to come to any conclusion other than that these frauds were organised by persons who meet the criteria of agent…”. (6) It is an election offence, and an illegal practice, to make a false statement about a candidate’s personal character and conduct during an election. There had been a campaign for some time to portray the Labour candidate, John Biggs, as a racist. Mr Choudhury issued a press release implying that the allegations had received some support from the Equalities and Human Rights Commission when in fact they had distanced themselves from earlier comments which could have been interpreted as lending credence to the claims. He knew this was the case, so the false statement was “dishonest”. Then he issued a press release, based on, and quoting selectively from, old Labour party documents, which included statements which were “demonstrably and deliberately false” such that “the reader of that release would get the message loud and clear: ‘John Biggs is a racist – and his own party think so too.’” These press releases were election offences. (7) There was evidence that four canvassers had been paid for canvassing, which is an illegal practice. (8) There was an allegation of electoral bribery, which is a corrupt practice. The main evidence came from the PWC report and the former Council officer whose whistleblowing claims, that Mr Rahman and Mr Choudhury had subverted the decision-making process to allocate grants and contracts to Bangladeshi organisations which were likely to support them, had lead to the Panorama programme. There was a clear conflict of factual evidence. Mr Mawrey found that “it [was] a purpose (albeit not the only purpose) of these grants to convince the beneficiaries of the activities of the organisations concerned that the Mayor was looking after their community and the continuance of this benefit depended on his being re-elected in 2014…”, that the grants were improperly made and “corrupt”. This was bribery, rather than “pork barrel politics” because Mr Rahman “.., was, in reality, the sole controller of the grant funds and he manipulated them for his own personal electoral benefit.” (9) Grants were made to media organisations serving the Bangladeshi community, including fees paid to local TV outlets for broadcasts “which were ostensibly about the Borough and its administration but which were in fact personal political broadcasts on behalf of Mr Rahman”. These, too, amounted to electoral bribery. (10) An allegation of “treating” - “giving or providing, any meat, drink, entertainment or provision” to influence a voter - was rejected.

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(11) A section of the judgment which Mr Mawrey acknowledged “cannot help but be controversial” dealt with “undue spiritual influence”. It is an offence, and a corrupt practice, to “inflict or threaten to inflict … any temporal or spiritual injury, damage, harm or loss upon or against any person in order to induce or compel that person to vote or refrain from voting, or on account of that person having voted or refrained from voting.” The allegation was that Mr Rahman had been “determined to play the religious card. … The campaign would be targeted at Tower Hamlets’ Muslim population with a stark message: ‘Islam is under threat: it is the religious duty of all devout Muslims to vote for Mr Rahman and his party’” through his relationship with Mr Hoque, the Chairman of the Council of Mosques. This focussed on two events. The first was a meeting at which Mr Rahman shared the platform with a number of Muslim clerics. A supporter of Mr Rahman posted an account of the meeting, which reported Mr Hoque as having “urged everyone to vote for Mayor Lutfur Rahman to retain truth, righteousness and practice religious belief.” The second was a wedding reception at which Mr Rahman and Mr Hoque made speeches. Mr Hoque’s speech included (in translation) “we will elect the Mayor again and celebrate his victory. I urge all of you to keep in mind that the forthcoming election will be held on 22nd. We have to forget ‘win or lose’; this election is to sustain our own existence and asking you to prayer.” Then, during the campaign, 101 prominent Muslim clerics and scholars published a letter in a Bengali language newspaper. This was “a specially targeted letter aimed at one particular body of the faithful, telling them their religious duty is to vote for candidate A and not for candidate B.” Mr Mawrey said “Controversial though it may be, and likely to cause offence, it is none the less the clear duty of this court to hold that the participation of the Muslim clerics in Mr Rahman’s campaign to persuade Muslim voters that it was their religious duty to vote for him and, in particular, the Imams’ letter, did, however unwittingly for most of the signatories, cross the line … between what is permissible and what is impermissible. Sadly, therefore, the court feels it has no option but to find that there was undue spiritual influence contrary to s 115(2) of the 1983 Act.” (12) In addition, on the evidence Mr Rahman was personally guilty of “undue influence” through his close association with these events. (13) There were allegations that voters had been intimidated outside polling stations. Intimidation is an offence if it involves threatening or using force, violence or restraint, or threatening or inflicting injury, damage or harm, directed towards inducing or compelling a person to vote or abstain. There was a stark conflict of evidence, but Mr Mawrey found “overwhelming and convincing” evidence that large numbers of THF supporters – more than envisaged under a local Protocol – attended polling stations and harassed and intimidated voters. They were “agents” under the legislation. But he found that the level of “violence” was insufficient to constitute an election offence. (14) The false statements, bribery and undue spiritual influence “extensively prevailed” and might be be “reasonably supposed to have affected the result” of the election. Therefore there had been “general corruption”. An election will be void if there has been general corruption, even if it is not avoided because of election offences – which was the case here in any event. (15) These findings did not affect the election of other THF candidates, because their election had not been challenged by petition. (16) Mr Choudhury was formally “named” and certified as personally guilty of corrupt and illegal practices, and was disqualified as a councillor for five years. (17) Mr Rahman was personally guilty and guilty by his agents of corrupt and illegal practices. He was incapable of election, and effectively prevented from seeking re-election. As he is a solicitor, the judgement was drawn to the attention of the Solicitors Regulatory Authority. (18) Mr Rahman’s election was void by reason of the corrupt and illegal practices and the finding of general corruption.

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Mr Mawrey added some general comments, criticising the arcane and outdated legislation and procedures, praising the courage of the petitioners, the expertise of the Returning Officer and the performance of Counsel for all parties, and, by way of an “afterword”, deploring the “alarming state of affairs in Tower Hamlets.”

The election of Mr Chaudhury as a councillor was also declared void. There were new elections on 11 June 2015. Mr Rahman and Mr Chaudhury were disqualified from standing. John Biggs the labour candidate won the election for mayor.

On 29 April 2015 Mr Pickles issued fresh directions to Tower Hamlets following the court ruling. The directions require the Council under the direction of the Commissioners to appoint a Head of Paid Service within 3 months.

The Electoral Commission has also deregistered “Tower Hamlets First” as a political party following the ruling.

Mr Pickles has also intervened at Rotherham MBC following the critical report of Louise Casey published in February 2015. The Casey report found:

. a council in denial about serious and on-going safeguarding failures . an archaic culture of sexism, bullying and discomfort around race . failure to address past weaknesses, in particular in Children’s Social Care . weak and ineffective arrangements for taxi licensing which leave the public at risk . ineffective leadership and management, including political leadership . no shared vision, a partial management team and ineffective liaisons with partners . a culture of covering up uncomfortable truths, silencing whistle-blowers and . paying off staff rather than dealing with difficult issues

After the publication of the report the leader of the council and the cabinet all resigned. In response Mr Pickles appointed a team of commissioners who exercise all of the executive powers of the council. The commissioners are:

. Sir Derek Myers: (Lead Commissioner) will sign off all major council strategies, but will not usually take any operational decisions. . Stella Manzie: finance, education, environmental services, corporate governance, public health, and the day-to-day running of housing and neighbourhood services. She will also oversee the day-to-day running of the council as managing director. . Julie Kenny: economic growth, regeneration, and meeting future housing needs. . Mary Ney: licensing including taxis, and community safety including ongoing police investigations into child sexual exploitation. . Malcolm Newsam: children’s social care.

There are no legal requirements that the commissioners meet in public or publish their decisions, despite the fact that they are making all of the executive decisions on behalf of the council. The commissioners have developed a process of decision making to enable public awareness and engagement. The council has appointed an advisory cabinet and leader to work with the commissioners. The commissioners will hold regular meetings to make decisions with published agendas. The commissioners will publish decisions which they are “minded” to take. The public and councillors will then have an opportunity to comment on the proposed decisions before they are

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confirmed. The commissioners will take comments into account before confirming a decision. The commissioners may consider “exempt” items confidentially applying the same provisions which would apply to cabinet decisions. The commissioners’ decisions are not subject to scrutiny.

In addition Rotherham will be compelled to hold all out elections every four years from 2016. This has been brought into effect by the Borough of Rotherham (Scheme of Elections) Order 2015.

Birmingham has also been under the cosh. Mr Pickles appointed Sir Bob Kerslake to conduct a review of its governance and organisational capability. His December 2014 report, which Mr Pickles has endorsed, concludes:

. It has a not invented here, silo based and council knows best culture. . The narrative within Birmingham and the council needs to become more positive. . 30 years ago Birmingham City Council was at the cutting edge of innovation in local government but has lost ground. To return it needs to start with getting the basics right. . There is a blurring of roles between members and officers. The relationship needs to be reset and officers given the space to manage. . The current devolution arrangements within the city are confused and very few people understand them. They have also not been reconciled with the council’s financial position. . The council’s vision for the future of the city is neither broadly shared nor understood by the council’s officers, partners or residents. . Instead there is a multiplicity of strategies, plans and performance management processes which lead to unnecessary complexity and confusion and are not followed through to delivery. . The Chief Executive and corporate leadership team lack the corporate support and capacity that is needed to undertake their role effectively. . Neither the savings nor the staff reductions the council has made have been underpinned by a long-term strategic plan for the nature and shape of the future council and the people it needs; . The council faces very significant budget difficulties in the next few years and does not yet have credible plans to meet these. . Performance management is ineffective and not up to the scale of the task. . The council, members and officers, have too often failed to tackle difficult issues. They need to be more open about what the most important issues are and focus on addressing them . Partnership working needs fixing. … many external partners feel the culture is dominant and over- controlling and that the council is complex, impenetrable and too narrowly focused on its own agenda. . The council needs to engage in across the whole city, including the outer areas, and all the communities within it. . Regeneration must take place beyond the physical transformation of the city centre. There is a particularly urgent challenge in central and east Birmingham. It recommended: . The appointment of an independent improvement panel. . The Council should publish a report setting out how it has implemented the recommendations in December 2015. . Its governance needs to be reset to clarify roles, responsibilities, behaviours and ways of working expected in relation to the Leader, Cabinet, councillors Chief Executive and officers. The strategic, executive, independent scrutiny and community roles of members needs to be clearly defined and better supported including with appropriate training. The council also needs to ensure there are shared expectations of capacity, capability and how performance will be measured between members and the senior officer team. It should develop a simplified planning framework. Support

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services such as finance, performance management, Human Resources, IT and property should be managed corporately. The corporate centre should be strengthened. A senior post to lead the economic work of the council should be re-established. There should be a programme of culture change that is owned by both members and officers. . It should move to all-out elections. . It should as a matter of urgency to develop a robust plan for how it is going to manage its finances up to 2018/19. . It should strengthen its HR function. . It should establish a new model for devolution. . It should facilitate the creation of a new independent Birmingham leadership group. . It should redefine its partnership approach. . A combined authority governance review based on an authority formed of at least in the initial stage the core functional economic area of Birmingham, Dudley, Sandwell, Walsall, Wolverhampton and Solihull should be completed by July 2015. . The Government should support the creation of a new locally-led high powered partnership vehicle focussed on increasing employment and improving skills, starting in the most deprived parts of Birmingham.

The improvement team was appointed in January 2015 consisting of:

. John Crabtree as chair is a former senior partner of Wragge & Co., a former high sheriff of the West Midlands, and a former president of the Birmingham Chamber of Commerce and Industry. . Frances Done (vice chair, the Audit Commission’s former managing director for local government and a chartered accountant . Keith Wakefield (Lab) as well as Leeds City Council leader . Steve Robinson, Cheshire West and Chester Council chief executive.

In March 2015 the panel produced a report on the progress which the council was making to implement the recommendations in the Kerslake report.

Statutory officers’ protection and exit payment clawback

You will recall that Mr Pickles has been attempting for some time to water down the statutory protection for the “whistleblowing” postholders, the Head of Paid Service, section 151/Chief Finance Officer and the Monitoring Officer. They have special statutory protection from disciplinary action: beyond suspension on full pay for a limited period of two months any disciplinary action must be recommended by an Independent Person appointed to investigate. The decision to dismiss must be approved by full council. These rules are contained in the Local Authorities (Standing Orders) Regulations 1993 SI 1993/ 202 and the Local Authorities (Standing Orders) (England) Regulations 2001 SI 2001/ 3384. The main reason is that it seems impossible to get rid of a chief executive who is underachieving, or whose face no longer fits, without mistreating him or her, provoking a constructive dismissal and harassment claim and agreeing an expensive settlement (or “bumper payoff”, in Mr Pickles’s terms). The first proposal was to scrap it entirely. The second was to require the authority to consult with the Panel responsible for recommending members’ allowances, entirely inappropriate because they have a completely different remit and are unlikely to have the necessary expertise.

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Just when we thought this was in the long grass until after the election the government produced the Local Authorities (Standing Orders) (England) Regulations 2015/881. First, the principle that only full Council can decide to dismiss the Head of Paid Service is extended to the other two protected officers. This decision must be taken before notice of dismissal is given. Secondly, the DIP process is scrapped. Thirdly, the authority must alter its standing orders at its first meeting after the 11 May, presumably the annual meeting. The changes require the following procedure to be followed before a protected officer can be dismissed. The authority must invite “member conduct” independent persons (“IPs”) to be appointed to a Panel. If the authority has fewer than two IPs, the authority must extend the invitation to one or more IPs from another authority. If more accept the invitation than are needed, the appointments must give priority to IPs of the authority who are on the authority’s electoral roll, then to IPs of the authority who are not, then to other authorities’ IPs. At least two of those who have accepted must be appointed, but there is no limit. They can be paid, but no more than they would receive for their Localism Act work. The appointment must be made at least 20 days before the decision to dismiss. At the dismissal meeting, the authority must take into account any advice, views or recommendations of the Panel as well as (rather obviously) the conclusions of any investigation and any representations made by the officer.

There are some loose ends here. This process only applies to dismissal. Disciplinary action short of dismissal is not caught. Nor is action which is of a disciplinary nature, but not treated as such, and which amounts to constructive dismissal. So a canny authority could remove the statutory designation, then dismiss under the rules that apply to other staff. Conversely, the monitoring officer and chief finance officer can now only be dismissed on non-disciplinary grounds, such as redundancy following restructuring, by a full meeting of the authority.

The relevant terms and conditions of employment still apply. These contain detailed agreed disciplinary procedures which, certainly in the case of Heads of Paid Service employed on the Chief Executives’ JNC conditions of service, cross refer to the DIP process. Whether these now fall away, or whether and when the Local Authority Employers will agree to change them, are difficult questions.

There will almost always need to be a formal investigation and a disciplinary hearing before a decision to dismiss can be taken. It is not easy to arrange this kind of investigation in-house, and it is not cheap to hire someone to do it. Members who think that they can now dismiss their chief executive in short order and at little cost may well be disappointed.

Then there is the Panel of IPs. First, someone – full council or a committee after a preliminary investigation - has to decide to first how many and which IPs to invite to the Panel, and then how many and which to appoint. Secondly, they only have to issue two invitations. There cannot be a single-person Panel, so there is a problem if either invitee declines. It is not wholly clear from the Regulations whether the authority must continue issuing invitations until they are able to appoint, but this must surely be the case. Thirdly, a Panel of two will be problematic. They may disagree, and if they do, the individual appointed to chair the Panel, by the authority or the Panel itself, will have a casting vote, so this appointment might become rather important. An odd number is always better.

Fourthly – and this is a real curiosity – there is nothing in the Regulations to indicate whether the Panel can include anyone other than the IPs. The new mandatory standing orders say that the authority “must invite” IPs “to be considered for appointment to the Panel” and “must appoint” at least two of those who accept the invitation. But “the Panel” is defined as “a committee appointed by the authority under section 102(4) of the Local Government Act 1972 for the purposes of advising the authority on matters relating to the dismissal of relevant officers of the authority” That subsection creates one of

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the rarest creatures in the local authority jungle, the “advisory committee”. Few practitioners can recall having seen one. An advisory committee can only advise. Its members need not be members of the authority and non-members can have voting rights. So a Panel can just comprise IPs. But there is nothing to stop the authority appointing a panel comprising both IPs and elected members. If it does, the members of the administration group will be able to outvote the opposition members and the IPs. Under section 15 of the Local Government and Housing Act 1989, the proportionality principle that a group with a majority of members on the authority must have a majority on the Panel (including Panel members who are not authority members) takes precedence over the principles that the political balance amongst all the appointments made, and then on the Panel itself, must reflect the overall balance on the authority (this time excluding Panel members who are not authority members). The maths will be mind-boggling. It remains to be seen whether this will become popular. It was probably not what the Government intended, though. There are no clues in the explanatory note to the Regulations, but Local Government Minster Kris Hopkins told Parliament that the Regulations will “require the council to consider any advice from a panel of independent persons”. Ironically, the outcome may make it even easier for a political administration to dismiss a protected officer than he thought.

All these loose ends are fertile grounds for challenge and appeal. They could even make it more difficult to dismiss a statutory officer than it was before. Of course, if Mr Pickles and Mr Hopkins had approached this exercise more collaboratively it might have been possible to produce something less messy, but that was never going to happen.

The other line of attack is aimed at officers who leave public sector employment, with a settlement package and a pension, then obtain new employment elsewhere in the sector. In local government, the first fusillade appeared in the context of the pay policy statements, which local authorities must approve annually under section 38 of the Localism Act 2000. These must include the authority’s policies on severance for chief officers. In addition, under the Local Government (Early Termination of Employment) (Discretionary Compensation) (England and Wales) Regulations 2006 authorities are required to publish their policy on discretionary compensation for relevant staff in the event of redundancy. And details of senior officers’ remuneration, including details of severance payments, must be published under the Accounts and Audit (England) Regulations 2011 and the Transparency Code. The 2012 statutory guidance on section 38, and the 2013 supplementary guidance, said that severance packages over £100,000 required a vote by full Council, and “authorities should use their pay policy statements to explain their policies toward the reward of chief officers who were previously employed by the authority and who, on ceasing to be employed, were in receipt of a severance or redundancy payment from that authority. This should include any local policy toward ex-employees later engaged as chief officers under a contract for services.”

Weightmans sent out a survey to local authorities to see how they are responding to the difficulties created by the uncertainty created by the new Regulations. The responses show variations in the approaches being adopted to issues such as whether elected members will be appointed to the advisory panel and the applicability of JNC terms and conditions post the changes in the law. We will be publishing the full results shortly.

In June 2014, the Government launched a consultation exercise covering most of the public sector. It said that the Small Business, Enterprise and Employment Bill would permit regulations to be made: . “to require high earning public sector employees or office holders to repay exit payments should they return to the public sector within 12 months on a pro rata basis; … individuals would be

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required to repay the full amount should they return before 28 days and a pro-rata amount should they return between 28 days and 12 months; . to apply these measures to employees moving between the same part (or ‘sub sector’) of the public sector, with the definition of these subsectors to be determined … . higher earners would be defined as any individual earning above £100,000; below this threshold a taper would apply – down to a second earnings threshold (proposed to be in the region of £80,000); for employees earning below this level recovery arrangements would be purely determined by the employer or through national contracts . these changes would represent a baseline legal requirement; they would be focussed on the highest earners in order to guard against the most unfair and poorest value for money outcomes; where employers’ existing or proposed policy go further these measures will support rather than replace them.”

The proposals were criticised by the Employment Lawyers Association, but in October the Government said that it intended to press on, with the following changes: . payments in lieu of notice will not be recovered . payments that have a potential, if not actual, monetary value will not be recovered . there will be no lower earnings threshold for a taper because of cost and complexity . special severance payments will be subject to the recovery provisions because they include elements that are paid in respect of loss of employment such as payments made for efficiency reasons, as well as elements that could be attributable to employer fault, but waivers from repayment could be used where these agreements relate to elements of employer fault, such as out of court settlement of an employee’s claims against an employer . some sub-sectors (the Bank of England, public broadcasters the Office of National Statistics and some regulators) will be excluded but should set their own regimes . there will be no option to waive recovery of payments made to Ministers and their Special Advisers, and Parliamentary post holders.

The Bill became the Small Business, Enterprise and Employment Act 2015 on 26 March 2015. The provisions regarding the making of regulations to recover exit payments are in the Act (section 154) but are not yet in force.

On 28 March 2015 the government also issued guidance on the use of severance agreements and off payroll arrangements. The guidance is not statutory but “reminds” authorities of the government’s expectations in respect of:

Use of severance agreements The Government has recently put in place new guidelines for central government departments and their Arms Length Bodies on the appropriate use of severance agreements. These guidelines establish important and clear principles including that agreements cannot be used to cover up examples of individual or organisational failure. I believe that, in line with the rest of the public sector, local authorities should also follow these guidelines to be more accountable on their use of severance agreements.

‘Off-payroll’ arrangements The Government has taken a strong stance on tax avoidance, including in public appointments. Departments have reviewed the use of personal service contracts in their workforces and where misuse has been found, the Government has taken swift action, including by terminating a number of

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contracts. I want to make sure local taxpayers can be reassured that local authorities are taking an equally robust stance on the issue.

Performance appraisal of senior staff It is more important than ever that local authorities can demonstrate to their communities that they have strong and effective arrangements in place for managing performance of their senior staff. Better performance management can make it easier to tackle performance issues quicker, which will improve services and can help avoid costly exit deals. Authorities should open up their performance appraisal arrangements to scrutiny and give the public the opportunity to have their say on the way the authority and its most senior staff are performing

Publicity Code enforcement

The Code of Recommended Practice on Local Authority Publicity is issued under section 4 of the Local Government Act 1986, alongside the ban on party political publicity. It was amended in 2011. It includes the following: . Publicity must be balanced and factually accurate and avoid political statements or commenting on contentious areas of public policy or campaigns whose primary purpose is to persuade the public to hold a particular view on a question of policy (although you can correct inaccurate facts presented by others) . Local authority newsletters should be no more frequently than quarterly (parish councils monthly) and they should be limited to information about the business, services and amenities of the council or other local service providers. In June 2013 CLG minister Brandon Lewis MP complained that 10% of authorities were publishing newsletters more frequently than quarterly. The Audit and Accountability Act 2014 inserted new sections 4A and 4B into the 1986 Act. 4A gives the SoS power to direct compliance with the Code, 4B permits making regulations compelling compliance.

In April 2014 Mr Pickles gave formal statutory warnings to Greenwich, Hackney, Tower Hamlets, Newham and Waltham Forest. He said that their publications were too frequent and/or insufficiently even-handed. In September, similar warnings about frequency were given to Enfield, Lambeth, Hillingdon, Luton, Medway, and North Somerset. All the authorities were given until the 1 January 2015 to mend their ways, or persuade the SoS to change his mind.

In March 2015 a direction was issued to Greenwich. The SoS also gave written notice of further directions to Newham, Waltham Forest and Hackney following the comments which those authorities had made in response to the draft directions.

On 27 February 2015, the Secretary of State for Communities and Local Government issued a consultation document inviting views by 20 March on proposed changes to the Best Value Statutory Guidance.

The proposed revised guidance included an amendment to paragraph 2 to take into account the Social Value Act 2012 and two additional paragraphs of guidance on:

. not imposing contractual requirements on private and voluntary sector contractors over and above the obligations of the Equality Act 2010; and

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. the need to ensure that councils do not give grants to organisations which promote extremism or division in society.

The government received 18 responses to the consultation, 10 of which came from local authorities. The Government made some minor changes as a result of the consultation responses and published the guidance.

This is statutory guidance under section 26 of the Local Government Act 1999. That means that local authorities must have regard to it, and ought not to depart from it unless they are satisfied that there is sound justification. They cannot just beg to differ. In the current climate, though, most people will think that this is good advice. No one could reasonably support local authorities funding organisations which call for the death of servicemen and women. On the other hand, it is all rather open-ended. The list of “fundamental British values” is not exhaustive, so there may be others as yet unspecified and more controversial, and the guidance seems to prohibit grants to bodies which do not promote extremism but which do promote “division in society”, whatever that may mean. A debate about which publicly funded organisations are socially divisive would be rather interesting. And, of course, there used to be something called localism.

But what is this advice doing here? “Best value” was the New Labour government’s escape route from compulsory competitive tendering, a statutory obligation to “make arrangements to secure continuous improvement in the way in which [the authority’s] functions are exercised, having regard to a combination of economy, efficiency and effectiveness.” It involved rigorous self-examination, market testing and performance management. The guidance was long and detailed. The 2012 revision swept all that away, replacing it with a single page about consultation and not passing on spending cuts to the voluntary sector.

Not giving grants to organisations which promote extremism or social division is nothing much to do with continuous improvement, economy, efficiency and effectiveness, unless perhaps there is a strange argument that it is “inefficient” – a waste of money rather than downright wrong. There is a legal principle that statutory powers can only be used for the purpose for which they were given by Parliament, and that otherwise the courts can intervene. In the 1980s, Leicester City Council discovered that they could not ban the Leicester rugby club second team from using its recreation ground because the club refused to condemn the England tour to apartheid South Africa, the London Borough of Lewisham could not refuse to buy Shell’s products to pressurise it to disengage from the same regime, and the London Borough of Ealing and Derbyshire County Council found that, however much they disliked News International’s approach to industrial relations, they could not refuse to buy and display their newspapers, or decline to advertise vacancies in them.

More recently, Worcester City Council and the London Borough of Barnet declared conservation areas in order to prevent the demolition of a cricket pavilion and a monastery, respectively, which the Secretary of State had decided should not be listed. Both decisions were quashed. Blackpool Council could not refuse to renew the office lease of a firm of solicitors which it thought was “farming” tripping claims, and Barnet could not fix its residents’ parking charges in order to produce a surplus in the parking account.

So, has Mr Pickles used his power to issue best value guidance for a purpose which is outside what Parliament had in mind? This is a very sensitive subject, so it is probably unlikely that anyone would challenge the advice – was anyone really knowingly funding such organisations in the first place? But it

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must be a matter of concern if the Secretary of State is trying inappropriately to hang this instruction on best value, because he has no general power to tell local authorities what to do or not to do.

Ethical Conduct

More of the same

It follows from the emasculation of the national member conduct regime that there are fewer causes celebres, and little coherence at a national level. Trends around the country include: . A steady flow of local press reports about councillor wrongdoing: benefits fraud, pornography, inappropriate comments and so on. . Authorities which adopted the minimalist CLG or LGA codes struggling to apply general principles (complaints are often framed around the general principles rather than the actual codes) to misconduct which would plainly have contravened the old model code. . Convoluted provisions about interests which are not DPIs. . Uncertainty about the application of codes to borderline “acting in your capacity as a member” situations. . More and more complaints about the use of twitter and social media. . Monitoring officers taking more decisions to filter and resolve complaints, but without any overall pattern, and an increased risk of conflict if a complaint progresses. . Uncertainty about the role of the independent person in practical terms. How is he or she consulted, what records are kept, what is the IP’s role at hearings? . More complaints and conflicts resolved via the press than by the authority. . Political parties playing a more active role. . Little proactive work to promulgate good practice.

In September 2014, the Annual Report of the Committee on Standards in Public Life (“CSPL”) included the following comments: “There remains in our view a significant risk under these arrangements that inappropriate conduct by Local Authority members will not be dealt with effectively, eroding public confidence and trust in local government.” “The Committee was extremely pleased to learn that 90% of those who responded to the survey {odf monitoring officers and elected members] stated that their Local Authority provided an induction programme for newly elected councillors. Coverage and awareness of the Seven Principles of Public Life in local government was also pleasingly high, with 68% of respondents saying their induction covered the Seven Principles of Public Life, 88% saying it covered their Code of Conduct and 83% of respondents saying that councillors at their Local Authority were familiar or fairly familiar with the Seven Principles of Public Life. Despite these positive results, however, the Committee remains alert to the challenges to ethical standards arising from financial constraints and changes to the Local Authority standards regime. The Committee will therefore continue to monitor provision of Local Authority induction programmes and the profile of standards, conduct and ethical behaviour within those programmes by repeating this survey in 2015.”

In March 2015 CSPL published its annual survey of public attitudes towards conduct in public life. The highlights were:

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. Overall standards of conduct of public office holders More respondents rated the standards of conduct of people in public life as low (36%) than rated them as high (18%). This is the first time in a survey commissioned by the Committee that those who said they thought standards were low outnumbered those who thought they were high. . Change in standards of public office holders More respondents thought the standards of conduct of public office holders had got worse (36%) than had improved (16%). . Confidence that authorities are committed to upholding standards in public life Most respondents (56%) were not confident that the authorities are committed to upholding standards in public life. . Confidence that authorities will generally uncover wrongdoing by people in public office Most respondents (61%) were not confident that the authorities will generally uncover wrongdoing by people in public office. . Confidence that the media will generally uncover wrongdoing by people in public office Most respondents (58%) were confident that the media will generally uncover wrongdoing by people in public office. . Confidence that the authorities will punish those caught doing wrong Most respondents were not confident that people in public office caught doing wrong would be punished (63%). . Satisfaction with Britain’s political system and public attitudes towards conduct in public life A consistent pattern emerged across several variables measuring different aspects of satisfaction with Britain’s political system. Those who were positive about Britain’s political system also gave more positive answers about standards of conduct in public life, suggesting an association between attitudes towards the political system in general and perceptions of standards of conduct in public life

Freedom of speech and member misconduct

The High Court, in its decision in Patrick Heesom v The Public Services Ombudsman for Wales and The Welsh Ministers [2014] EWHC 1504 (Admin) upheld the decision of the Case Tribunal of the Adjudication Panel for Wales to disqualify a councillor from Flintshire, but the Court cut the disqualification period from 2 ½ years to 18 months. Hickinbottom J’s judgement contains a thorough and exhaustive analysis of the right way to resolve the inherent conflict between the disciplinary framework for local authority members who abuse and undermine officers, and their rights to freedom of speech under Article 10 of the European Convention on Human Rights. The judgement also confirms that member conduct cases are to be determined according to the civil burden of proof, on the balance of probability. Although the case concerned a local authority in Wales, where the Localism Act 2011 changes did not occur, the general principles will apply to misconduct complaints in England.

The appellant, Councillor Patrick Heesom, had been the Leader of the largest political group in Flintshire County Council, to which he had been consistently re-elected for twenty years. In 2009, the council’s corporate management team complained to the Public Services Ombudsman for Wales about the councillor’s conduct. The ombudsman conducted an investigation and referred the complaint to the Adjudication Panel for Wales (APW) for resolution by case tribunal. His report ran to 232 pages, and the tribunal sat for 58 days, heard 48 witnesses, and considered 7,000 pages of evidence. Their findings of fact comprised over 400 pages. The Tribunal found that Cllr Heesom had committed 14 breaches of the council’s codes of conduct, by failing to show respect and consideration for council officers, using bullying behaviour, attempting to

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compromise the impartiality of officers and conducting himself in a manner likely to bring his office or the Council into disrepute. The breaches related to the way in which Cllr Heesom challenged and criticised officers for their management of council services and the way that he pressed his constituents’ cases within the council. The nine incidents giving rise to the breaches were: . At a scrutiny committee meeting, Councillor Heesom threatened senior officers, saying that other managers had been dispensed with and “there were more to go”. . He improperly interfered in a housing allocation determination, pressurising officers, undermining the allocations policy and telling his constituents, who were seeking approval for a mutual exchange, to ignore the officers’ decisions and go ahead with the swap. He also sought a meeting with the Head of Housing at which he attempted to persuade her to allocate specific properties to specific people, entirely outside his remit, and made threatening comments to her, and he attended a meeting between a Homelessness Prevention Officer and a constituent during which he intimidated and undermined the officer and gave advice to the constituent which the officer considered incorrect. . At a meeting, Councillor Heesom was confrontational, rude, aggressive and bullying to a relatively junior officer, whom he accused of pursuing a personal agenda of undermining the warden service for sheltered housing (but see below). . He emailed all members of the Council ahead of a “visioning day” on the future of the warden service, falsely accusing the Director of Community Services of improperly bypassing members, and verbally attacking her at the event. He also told another officer that the Director “knows nothing about housing and her days are numbered.” . Councillor Heesom chaired two chief officer appointments panel meetings at which he verbally attacked and sought to undermine the officers involved in shortlisting the candidates.

The Tribunal disqualified him for two and a half years from being or becoming a member of Flintshire or any other relevant authority. Councillor Heesom appealed, challenging the decision on three grounds, namely that: 1. the incorrect standard of proof was adopted; the case tribunal should have used the criminal rather than the civil standard; 2. the case tribunal erred in its findings as to breaches of the codes of conduct; 3. an unjustifiably severe penalty was imposed. His appeal to the High Court relied on the strength of an elected politician’s right to free expression under the common law and Article 10 of the European Convention for Human Rights. The Welsh Government was granted permission to intervene to explain the standards regime in Wales.

Mr Justice Hickinbottom first: . Reviewed in some detail the domestic and European case law on Article 10 and in particular the “enhanced protection” for “political expression”, exploring the scope of the concept, but indicating that there is a public interest in protecting public confidence in unelected public servants, which is to be balanced against the interests of open discussion on matters of public concern. He confirmed that the correct approach is to ask three questions: (1) Leaving aside Art 10 and any similar common law considerations, was there a breach of the Code of Conduct? (2) If so, was that finding a breach of Art 10? (3) If so, was the restriction involved in the finding justified under Art 10 (2) as “necessary in a democratic society” responding to a “pressing social need” and proportionate to a legitimate aim pursued by the state? If the enhanced protection applies, the threshold for the justification will be significantly higher.

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. Analysed the deference which the High Court should give to the Tribunal’s findings in a statutory appeal. . Confirmed that the APW should not be a formal party to the appeal. . Rejected Cllr Heesom’s argument that the criminal standard of proof should apply in Case Tribunals. Although the criminal standard had been applied in an Election Court (Watkins v Woolas [2010] EWHC 2702 QB) that was essentially because a finding of “guilt” in those proceedings necessarily indicated that a crime had been committed. . Found that even a backbench opposition councillor should respect the bond of trust and confidence between the Council and the officers that it employs.

He then upheld most of the Tribunal’s findings, but quashed three of them. In all cases, he found Art 10 engaged and that the enhanced protection applied to some extent at least. The finding relating to the meeting about the warden scheme was wrong, because the behaviour did not amount to bullying. Councillor Heesom had not intended to intimidate or undermine the officer. He did fail to show her respect and consideration, but not to the extent needed to justify the breach of Art 10. Likewise, his conduct towards one of the officers at one of the appointments panel meetings was not bullying, and a finding of failure to show respect and consideration to him would have breached Art 10, because the officer did not feel threatened.

On the appeal against the sanction, Cllr Heesom argued that: . The decision had not addressed Art 10(2) proportionality - Hickinbottom J felt able to read the findings together with the decision on sanction and that proportionality had been considered. . His re-election, at a point in time when the allegations were public knowledge, had not been properly taken into account - Hickinbottom J agreed it could be a factor, but felt that electoral popularity could not excuse misconduct. . The abolition of substantive sanctions in England made disqualification disproportionate - Hickinbottom J said that this area had been devolved and Wales was entitled to take a different stance. . The Tribunal should have considered suspending Cllr Heesom from executive office, not from the Council - But this had not been suggested to the Tribunal, and he was no longer an executive member. . The penalty was excessive - Hickinbottom J reviewed the mitigating and aggravating factors. Cllr Heesom had been neither convicted nor charged with any criminal offence and none of the relevant conduct resulted in any personal financial gain. The breaches did not fall into the most serious categories. Most of the breaches were political expression, although some of the statements were deliberately false and misleading (and therefore not protected by Art 10). Cllr Heesom had been re-elected. Disqualification would rob him of his living. His record as a councillor for nearly 20 years stood in his favour. On the other hand, some of the breaches were intentional, and some were serious. There was a finding of bringing the Council and his office into disrepute, which was justified looking at the misconduct cumulatively. There were repeat breaches. Cllr Heesom had demonstrated no remorse or insight at the hearing. He had been trying to obtain political gain. Then Hickinbottom J reviewed other reported cases on sanction. He said that “no sanction short of disqualification would have been appropriate” but he reduced the period of disqualification, which he described as “excessive, and manifestly so”, from two and a half years to 18 months, running from 19 July 2013.

Cllr Heesom was a local councillor for over 20 years. He had been an executive member, and he led his political group. He has been removed from office on account of his behaviour towards ten officers in eight separate incidents over a two year period. He breached the Code of Conduct by failing to

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show them respect and consideration, attempting to compromise their impartiality (on two occasions), and bullying them (on two occasions) and by bringing the Council or his office as a councillor into disrepute (on one occasion). He did so in such circumstances, or in such a manner, that it was justifiable and proportionate to find against him, and to disqualify him, notwithstanding his legal right to freedom of speech (in so far as his statements were factually accurate and not deliberately misleading) and the enhanced protection allowed for political expression.

The Welsh Assembly Government decided to retain the member conduct regime which the UK Parliament scrapped for England in 2011. This judgement brought to an end a process which started with a formal complaint in March 2009. The length of the proceedings and the scale of the paperwork are staggering. In England, although many of the legal intricacies of the case will be directly relevant to complaints about councillors fielded by Monitoring Officers and Standards Committees, but disqualification for this kind of breach – or in truth any sanction beyond a toothless reprimand – is out of the question, and no external agency or tribunal would be involved. Many authorities have codes of conduct – recommended by the Government – which do not require councillors to treat others with respect, or outlaw bullying. There are two ways of looking at this. Some would say that England has got it right, that in Flintshire the sledgehammer was grossly disproportionate to the nut, and that Cllr Heesom was just overenthusiastic. Others will think differently. Most senior local government officers will know what it is like to be criticised, pressurised and undermined, verbally attacked and even bullied in front of colleagues or in public. It is tempting to shrug it off as something that goes with the job, but that encourages a culture where such things are tolerated, and the impact can threaten your self-confidence, health and career. There was evidence that some of the Flintshire officers were affected in this way.

It seems nitpicking to highlight some of the side issues buried in this careful and well-argued judgement, but we like the idea that protecting public servants should be weighed in the proportionality balance against freedom of political expression, it is comforting that we have been right about the burden of proof for all these years, and local government employment lawyers will be interested in the finding that the behaviour of a backbench opposition councillor can breach the Council’s duty of trust and confidence to its employees. On the other hand, the judgement is probably best confined to its own facts in so far as it suggests that bullying requires a positive intention on the part of the bully (a remarkable loophole, potentially), or that behaviour which is confrontational and aggressive but not intended to intimidate or undermine, or which is meant to be threatening but is not perceived as such by the victim, is likely to be protected by Art 10.

However, Monitoring Officers and local government lawyers in England and Wales will find the decision very useful, particularly because of the thoughtful and detailed consideration and analysis of the balance to be struck between the right to freedom of political expression and interference with that fundamental right in member conduct cases.

Councillor Flower becomes the first member convicted under the Localism Act

In November 2014, Local Government Lawyer reported that the Crown Prosecution Service had authorised the police to institute proceedings against the leader of Dorset County Council for three offences under the Localism Act. The report stated: In a statement John Locke, Senior Crown Prosecutor for the CPS Wessex Complex Casework Unit, said: "It is alleged that whilst Cllr Flower was leader of East Dorset District Council, he failed to declare his interest in Zebra Property Solutions LTD (ZPSL), a company for which he was a Non-Executive Director. It is also alleged that he failed to declare his interest in the same company to Dorset County Council. 65

"The third allegation relates to Cllr Flower failing to disclose his interest in Synergy Housing Ltd (SHL), a company in which he was also a Non-Executive Director, before a meeting of Dorset County Council on 25 February 2013 at which its Core Strategy for the provision of social housing was discussed. It is alleged that Cllr Flower participated and voted during this meeting.” Locke added: "I carefully reviewed all the evidence provided to me by Dorset Police and was satisfied that there is sufficient evidence for a realistic prospect of conviction and that it is in the public interest to prosecute Cllr Flower for these three offences.” Cllr Flower has been asked to attend Bournemouth Magistrates' Court on 2 December 2014. He told the BBC that he would stand aside temporarily as Leader to fight the claims. Cllr Flower said: "I want to put the people of Dorset first at a time when the council is going through a difficult period of service transformation. "I cannot fulfil my duties in the way I wish at this time." Councillor Flower pleaded “not guilty” on the 2 December 2014. He stood down as Leader of the County Council and has been suspended by his party.

In March 2015 Councillor Flower was convicted of one of the charges (the other two were dropped), a 6 month conditional discharge was imposed and he was ordered to pay £930 costs.

After the hearing, he told the BBC: “I am surprised and disappointed that the court has found for the prosecution this morning on a technicality. The decision was a conditional discharge for six months - the lowest possible penalty. The court emphasised the total lack of any personal gain or intent on my part.

A Dorset County Council spokesman said:

The county council requires the highest standards of probity and compliance from its members, and takes such matters extremely seriously.

The Localism Act 2011 protects communities and individuals. It ensures that the work we do is transparent and is in the best interest of Dorset residents.

The court has allowed Cllr Flower to remain an elected member and he can continue as a valued member of the county council.

Litigation

Judicial review reforms

The Criminal Justice and Courts Act 2015, which received Royal Assent in February 2015, has made significant changes to the procedures for judicial review of the decisions of public bodies. The changes include changes relating to the following subjects:

Likelihood of a substantially different outcome Section 84 of the Act has made amendments to section 31 of the Senior Courts Act 1981, and sections 15 and 16 of the Tribunals, Courts and Enforcement Act 2007, to require courts to refuse permission or a remedy for an application for judicial review if a court considers that it is highly likely that the outcome for the applicant would not have been substantially different if the conduct about which the

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applicant has complained had not occurred. However, a court may disregard this requirement if it considers this appropriate for reasons of exceptional public interest.

Information about financial resources Section 85 of the Act has made amendments to section 31 of the Senior Courts Act 1981, and section 16 of the Tribunals, Courts and Enforcement Act 2007, to require those seeking permission to apply for judicial review to provide information about the source, extent and nature of their financial resources. This will mean that when courts are making decisions on awards of costs, they will have information on providers of funding for judicial review applications, even if those funders are not parties to the application.

Interveners and costs

Section 87 requires a court to follow two presumptions in respect of the costs of interveners in judicial review cases unless exceptional circumstances make this inappropriate. The first presumption is that interveners should bear their own costs. The second presumption is that, where a party applies to the court, asking the court to order an intervener to pay that party’s costs arising from the intervention, unless there are exceptional circumstances, the court must make such an order if one of four conditions is met. Those conditions are: (a) the intervener has acted, in substance, as the sole or principal applicant, defendant, appellant or respondent; (b) the intervener's evidence and representations, taken as a whole, have not been of significant assistance to the court; (c) a significant part of the intervener's evidence and representations relates to matters that it is not necessary for the court to consider in order to resolve the issues that are the subject of the stage in the proceedings; (d) the intervener has behaved unreasonably.

Costs capping

Section 88 makes provision for the High Court or the Court of Appeal to make a costs capping order relating to judicial review proceedings only if leave to apply for judicial review has been granted and if the court is satisfied that the proceedings are public interest proceedings, in the absence of the order, the applicant for judicial review would withdraw the application for judicial review or cease to participate in the proceedings, and it would be reasonable for the applicant for judicial review to do so.

Judicial Review: Requirements of local authorities

R (on the application of Midcounties Co-operative Ltd) v Forest of Dean District Council and another [2015] All ER (D) 48 (May)

In this case, the court made observations about the minimum requirements from local authorities as defendants to judicial review proceedings.

The case related to the decision by a local authority to grant planning permission for a retail store and associated development. The decision was challenged by way of judicial review. The developer to whom planning permission had been granted was an interested party to the proceedings. Although the Council regarded its decision as valid, it decided that it could not afford to defend the judicial review claim and therefore did not take an active part in the proceedings. It informed the court that it did not concede the claim but that, since it could not afford to take an active part in the proceedings for financial reasons, it supported the interested party in its resistance. The application for judicial review succeeded.

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The judge in this case (Singh J) made comments to the effect that the stance such as that taken by the local authority could lead to tension with certain fundamental aspects of the way in which judicial reviews are conducted. He suggested that a defendant public authority which cannot, for financial reasons, defend its own decision in judicial review proceedings should at least consider:  Whether it has complied with its duty of candour and co-operation by disclosing all relevant documents.  Whether its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly.  Whether it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained.  Whether a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so.

Environmental Protective Costs Orders

R (on the application of HS2 Action Alliance and another) v The Secretary of State for Transport and another [2015] EWCA Civ 203 The Court of Appeal has confirmed that local authorities can benefit for the provisions for environmental protective costs orders set out in Rule 45 of the Civil Procedure Rules. These provisions mean that where the Aarhus Convention applies (where members of the public challenge decisions on environmental matters taken by public authorities), the court can cap the amount of costs that a losing claimant has to pay to a defendant at £5,000 if the claimant is an individual, or £10,000 if the claimant is an organisation. In December 2014, the Court of Appeal dismissed an appeal by the London Borough of Hillingdon and HS2 Action Alliance, against a decision by the High Court in August 2014 that a Strategic Environmental Assessment was not needed in respect of directions made by the Secretary of State for Transport under the planning regime for the proposed HS2 rail network. The High Court had applied Rule 45 and capped the contribution that the local authority and HS2 Action Alliance had to make to the Secretary of State for Transport’s costs. The Secretary of State argued in a cross-appeal that the local authority’s costs should not be capped. The High Court dismissed this. The Secretary of State appealed and the Court of Appeal dismissed the appeal. The Court of Appeal found that local authorities could be claimants for the purposes of environmental protective costs orders because:  The Aarhus Convention was relevant to deciding whether or not a claim was an Aarhus Convention claim to which the environmental protective costs order regime applied. However, once that had been decided, the Aarhus Convention was not relevant to determining the actual costs liabilities of the parties. The costs liabilities were dealt with in Rule 45.

 Taking into account the government's August 2012 response to its consultation on the environmental PCO regime, it would not be right to infer the exclusion of "public authorities" (as defined by the Aarhus Convention) from the scope of claimants who can benefit from the cost caps. Inferring that exclusion would "undermine legal certainty".

 Inferring that certain claimants cannot benefit from the costs caps would also be inappropriate because Rule 45 provides that the accompanying practice direction to Rule 45 can prescribe a

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different level of costs cap for different types of claimant. This means that the practice direction could prescribe a higher level of costs cap for local authorities.

 While interpreting the word “claimant” in Practice Direction 45 in accordance with the definition in Civil Procedure Rules 2.3(1) (thus giving the word its ordinary and natural meaning) might conceivably have “bizarre consequences”, as contended by the Secretary of State, those consequences were more theoretical than real.

Public Sector Equality Duty In March 2015, the Equality and Human Rights Commission published guidance on the public sector equality duty and data protection. The guidance contains information on: the public sector equality and its requirements in relation to information; the Data Protection Act 1998; how the Data Protection Act 1998 applies to equality monitoring and equality information; collecting personal information for public sector equality duty purposes. The guidance also gives “essential tips for staying within the law and adopting good practice.” The guidance is available at: http://www.equalityhumanrights.com/private-and-public-sector-guidance/public-sector- providers/public-sector-equality-duty/guidance

Public Sector Equality Duty case law R (on the application of Hardy) v Sandwell Metropolitan Borough Council (Zacchaeus 2000 Trust intervening) [2015] All ER (D) 01 (Apr) The claimant applied to the defendant local authority for a discretionary housing payment to make up the shortfall between his housing benefit and the rent for his property. The local authority calculated that the income of the claimant and his wife, excluding the mobility component of their disability living allowance (DLAm) but including the care component (DLAc) exceeded their income. The local authority assumed that this surplus income could be applied towards their rent and awarded discretionary housing payments at a rate based on that assumption. The local authority confirmed that decision after a second reconsideration. The claimant applied for judicial review. The claimant argued that: (1) The local authority’s policy of taking DLAc into account as a matter of course when assessing the rate of discretionary housing payments was contrary to the Department for Work and Pensions’ Discretionary Housing Payments Guidance Manual Including Local Authority Good Practice Guide (the guidance) and an unlawful fetter on the local authority’s discretion. (2) The local authority’s decision constituted unlawful discrimination arising from disability, contrary to article 14 of the European Convention on Human Rights. (3) The local authority had breached the public sector equality duty imposed by section 149 of the Equality Act 2010 and had failed to make reasonable adjustments to its policy, as required by section 29(7) of that Act. The intervener, a charity that provided assistance and support to people on low incomes, argued that the local authority’s action constituted discrimination in the exercise of a public function, contrary to sections 15, 19 and 29(6) of the Equality Act 2010. The intervener also argued that including DLAc as income in a means-assessment process, which was not itself related to the provision of care, was contrary to the statutory scheme and was therefore irrational.

The application was allowed. It was held that: (1) The policy of always taking into account DLAc as income when assessing awards of discretionary housing payments was unlawful because it failed to have due regard to the guidance, amounted to a failure to exercise the local authority’s discretion and fettered any future exercise of that discretion. (2) The local authority’s approach to including DLAc as income in calculating the claimant’s discretionary housing payments had amounted to discrimination contrary to Article 14 of the European Convention on Human Rights or alternatively in breach of

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section 29(6) of the Equality Act 2010. The local authority’s approach amounted to indirect discrimination because it treated disabled applicants and their disability-related income in exactly the same way as it treated others and their non-disability related incomes, giving rise to unfavourable treatment to disabled applicants. (3) The local authority’s monitoring exercise seemed to have been a case of ticking boxes, rather than a substantive consideration of how the local authority’s discretion was being exercised and its effect on disabled applicants. The local authority had breached its public sector equality duty.

R (on the application of Cushnie) v Secretary of State for Health [2014] EWHC 3626 (Admin) The claimant no longer had leave to remain in the UK. He had unsuccessfully applied for asylum and was due to be deported but was unable to fly because of chronic arthritis. The Bristol Clinical Commissioning Group refused to fund treatment at a specialist rheumatology clinic because the National Health Service (Charges to Overseas Visitors) Regulations 2011 (SI 2011 No. 1556) (“the Regulations”) provide that former asylum claimants are entitled to NHS treatment free of charge only if they are receiving accommodation and support from the Home Office under certain statutory provisions. The claimant submitted that he would qualify for such support but for the fact that he is disabled and requires help with personal care. Under the National Assistance Act 1948 this means that the support he receives must come not from the Home Office but from a local authority. He said that (1) The Regulations gave rise to unlawful disability discrimination in breach of Article 14 of the European Convention on Human Rights, read with Article 8, and that in making the Regulations the Secretary of State had failed to comply with the public sector equality duty in section 149 of the Equality Act 2010. The court (Singh J) held that: (1) there was discrimination, but it was justified because of the burden that would otherwise be placed on the immigration authorities; (2) However the Secretary of State had not had due regard to the need to promote equality of opportunity for disable persons when the Regulations were made. The equality impact assessment had addressed different protected characteristics. It was too late to have regard to that factor after the Regulations had been made.

This is a rare example of a successful attack on government policy and secondary legislation.

R (on the application of Essex County Council) v The Secretary of State for Education [2014] EWHC 2424 (Admin) Essex had been in receipt of an annual grant from the Secretary of State under a scheme to fund childcare provision. Under that scheme, it was entitled to carry forward any unspent capital from the previous financial year into the following year. In 2010, the new government notified Essex that it had to reduce the amount of unspent capital that could be carried forward for projects where funds had not been committed. In 2012, Essex had succeeded in challenging the policy on the ground that the Secretary of State had not properly applied the pre-Equality Act 2010 equality duty. The Secretary of State had reconsidered, following further representations from Essex. The Council argued (1) the Secretary of State had wrongly applied the old criteria, approved by the Court in 2012 (2) the Secretary of State had changed his stance on when exceptions should be made (3) failure to give adequate reasons (4) failure to meet the public sector equality duty. While disability and gender were considered at length, under “age” the equality impact assessment simply said “no relevant issues in this case”. The Court (Cranston J) held: (1) The old criteria were not unreasonable. The Secretary of State had applied them for the same reasons as before, not just because they had been approved in the previous proceedings. (2) The exceptions had been reconsidered and were determined on the merits of each case.

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(3) Adequate reasons were given. (4) The phraseology “no relevant issues” did not mean that the issue of age had not been considered. “It ran like a thread through the decision making, through the equality impact assessment, and through the other documents.”

This is the usual outcome if you challenge a Secretary of State decision, especially if he has had two shots at it.

R. (on the application of Rotherham MBC) v Secretary of State for Business, Innovation and Skills [2015] All ER (D) 283 (Feb) Rotherham Metropolitan Borough Council and Liverpool City Council applied for judicial review of decisions of the Secretary of State concerning the allocation of EU structural funding for 2014 - 2020 as between the four countries of the United Kingdom and as between the English regions. They contended that the decisions were irrational in that, in reaching them, the Secretary of State had failed to treat like cases alike, in that their regions had not been protected from the effects of sudden and significant cutbacks as similarly-categorised regions in Scotland and Northern Ireland had been. They also submitted that the decisions had been reached without due regard to the public sector equality duty (PSED) as required by the Equality Act 2010.

Their application was rejected at first instance, despite a ruling that in making the decisions the Secretary of State had failed to comply with the public sector equality duty, and they appealed. They appealed to the Court of Appeal but the appeal was dismissed. They appealed to the Supreme Court. They argued that the Secretary of State treated Merseyside and South Yorkshire differently from Northern Ireland and Highlands & Islands when they were for practical purposes in the same position and in the same way as other English transition regions when they were in a materially different position. That was contrary to the general principle of equality in EU law as well as ordinary principles of English public law. They also argued that the Secretary of State’s decisions imposed a disproportionate burden on them.

The Appeal was dismissed, although three judges dissented. It was held that: (1) The Secretary of State had been entitled to have regard to the constitutional settlement of the UK, provided that: (i) the basis on which he had done so had not unjustifiably discriminated between the four countries and (ii) the financial implications for the individual regions of the UK had been consistent with EU Regulation 1303/2013. (2) So far as the decision about Highlands and Islands arose from the treatment of Scotland as a separate territorial unit, that treatment was defensible. So far as it had arisen from the preferences of the Scottish Government, it seemed to be the natural and legitimate result of the decentralisation of the UK under its present constitutional settlement. (3) Proportionality was a test for assessing the lawfulness of a decision-maker’s choice between a legal norm and a competing public interest. In this case, proportionality added nothing to the case based on alleged discrimination. The only legal standard by which the treatment of the appellants could be regarded as disproportionately onerous was provided by the terms of EU Regulation 1303/2013 and the principle of equality. If the Secretary of State’s decisions were consistent with both, as they had been, their treatment could not be regarded as disproportionate.

R (on the application of Robson and another) v Salford City Council [2014] EWHC 3481 (Admin) This was a challenge to the Council’s decision to cease direct provision of transport to day centres in favour of a lower-cost menu of different arrangements such as “ring and ride”, taxis or motability vehicles driven by carers. The claimants, who were severely disabled, argued that (1) the Council was in breach of its duty under section 2 of the Chronically Sick and Disabled Persons Act 1970 (2)

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inadequate consultation and (3) failure to comply with the public sector equality duty. The court (Stephen Davies J) held that: (1) The process envisaged by the Council, based on an individual assessment, was not likely to be in breach of the section 2 duty; (2) The consultation was adequate on the facts; (3) The Council had produced an action plan, undertaken a consultation exercise and conducted a careful analysis of the results, including identifying the concerns raised and the ways in which those concerns might be eliminated, reduced or mitigated. The Judge added “whilst I accept that neither the particular part of section D which relates to disabled persons nor section E are as detailed or as rigorous as they might, and perhaps should have, been; and whilst I also accept that if those parts of the impact assessment were read in isolation there would be grounds for concern, in my judgment that is not enough by itself to enable the claimants to succeed in their challenge under this ground. It is necessary to read the impact assessment as a whole, without undue forensic analysis, before reaching a conclusion. … As I have said, by reference to the documents, it is apparent that throughout the whole process the defendant was evidently aware of its legal duty under s.149. More importantly, perhaps, the documents to which I have referred also demonstrate that it was also evidently aware in its decision making process as to the potential adverse impacts on existing disabled adult service users, and that it was actively considering steps to take to meet the needs of such persons and to eliminate, reduce or mitigate those adverse impacts. In such circumstances I am satisfied that at the time when it made the decision under challenge the defendant had properly complied with its public sector equality duty.”

The court was willing to take a pragmatic approach. It is not enough to pick a few holes in the assessment. The claimant made an appeal but the Court of Appeal was dismissed ([2015] All ER (D) 150 (Jan)).

R. (on the application of Karia) v Leicester City Council [2014] EWHC 3105 (Admin) A 101-year old woman of Gujarati descent failed in her challenge of a local authority's decision to close a residential care home, where she had lived for over 14 years, and where she received culturally appropriate care: a specialist kitchen, a temple within its premises, festival celebrations and visits to temples and the carers and residents spoke Gujarati. The Council proposed to close all directly run local authority care homes and/or to transfer some or all of them to the private sector. It produced an equality impact assessment and consulted on the closure of the homes, including interviewing the claimant. It decided to close four homes, including this one, and to sell four as a going concern. The claimant argued the Council had failed (1) to adequately inform itself of material issues of fact and proceeded on the basis of fundamental errors of fact relating to the overall present and future levels of demand for residential care home provision (2) failure to have due regard to the need to foster good relations contrary to the Equality Act 2010 (3) failure to take into account the claimants’ European Convention on Human Rights Article 8 rights, her legitimate expectation of a home for life and how well her likely care needs could be met elsewhere.

The court (Sir Stephen Silber) held: (1) The Council made adequate enquiries and had not acted irrationally or Wednesbury unreasonably. (2) The Council had complied with the public sector equality duty. The claimant’s submissions were based on the premise that there was a requirement that the local authority should ensure that the matters set out in that section were actually met, rather than the obligation to have due regard to the need to achieve certain ends. There was a vital distinction between, on the one hand, the duty to achieve a result such as to eliminate unlawful discrimination or to promote equality of opportunity, and on the other hand, the duty to have due regard to the need to achieve those goals.

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(3) The Council had taken those matters into account.

The risk for the Council was that, because of the special circumstances, the Court would be tempted to apply a high threshold. That it did not do so demonstrates both good practice by the Council and the increasing maturity and robustness of the courts in these cases.

Blake v Waltham Forest LBC [2014] EWHC 1027 (Admin) The Council had terminated an occupational licence it had granted to a charity to operate a soup kitchen for the homeless at a car park owned by the Council, because of the anti-social behaviour of some of its users. The local authority offered an alternative site, which the charity rejected as inaccessible and dangerous for its users and volunteers. The claimants contended that the local authority had failed to discharge its public sector equality duty by not considering the likely impact of its decision on vulnerable, disabled and elderly users of the soup kitchen, which would have to close because no suitable alternative site had been identified. They said that the assessment that was carried out had assumed that the soup kitchen would move, and not that it could close. The Council denied that this had been the case.

The court (Simler J) agreed with the claimants. She said “What the Council failed to do however, having recognised and identified a potentially affected vulnerable group, is follow its own guidance requiring that “negative impacts must be fully and frankly identified so the decision-maker can fully consider their impact” so that the impact assessment is “evidence based and accurate”. It failed to identify in clear and unambiguous terms, the most likely adverse impact this vulnerable group might face as a consequence of the decision proposed; and failed to engage with mitigating measures to address that impact, by failing to engage with the very real prospect that the soup kitchen would close altogether because Christian Kitchen would not move to the alternative site offered if forced to leave Mission Grove. Rather than examining and assessing this impact, the Council instead, examined and assessed a hoped for and much less serious impact.”

Bias

Bishop's Stortford Civic Federation v East Hertfordshire District Council [2014] EWHC 348 (Admin) The Council had a financial interest in a development under an agreement entered into in its capacity as the owner of some of the land. Planning permission was needed. The latest version of the agreement, approved by full Council on the recommendation of the Executive, obliged the Council to use reasonable endeavours to assist the developer in obtaining all necessary consents and to support it in promoting the development. The developer sought outline permission, for a departure from the local plan. The planning committee meeting was “lively”. The Executive Member for Finance, Councillor Tindale, addressed the meeting. He seemed to suggest that the development had already been approved by Council, and he stressed the economic benefits. A bare majority of the Committee agreed to grant permission. There were complaints alleging a breach of the Code of Conduct for Members. The Monitoring Officer investigated and found that Councillor Tindale had had no right to address the meeting and had brought his office or the Council into disrepute. The Standards Committee found a technical breach of the Code but imposed no sanction. On completion of a section 106 agreement, permission was granted. Opponents of the development challenged the grant, arguing as follows. Councillor Tindale had no right to attend the meeting. He had introduced an irrelevant consideration (the financial benefit to the Council) and misled the Committee by his references to the Council decision. The judge found that he had a right to attend effectively as a member of the public, and had no personal interest as such. He had not misled the Committee

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because the issues were well known. The references to the land transaction did not influence the committee. They were experienced members. It was wrong to delve too deeply into what had been said in the debate. The argument was rejected. There was a second issue about consultation on additional planning documents, which was also rejected.

This case shows how far we have come since the flurry of hard-line predetermination cases 10 years ago. The court was extraordinarily tolerant of an intervention by a senior member who ought not to have been at the meeting and whose comments were not limited to the pure planning merits, which was likely to have acted on the minds of the members of the committee.

BDW Trading Limited (t/a Barratt Homes) and another v Cheshire West & Chester Borough Council and another [2014] EWHC 1470 (Admin) The Council was in the process of replacing its 2006 Local Plan with the Cheshire West and Chester Local Plan (CWLP). In 2011 the Parish Council began the procedures under the Localism Act 2011 to promote a Neighbourhood Development Plan (the TNP). A 2012 Scoping Report recommended that the TNP should take account of the emerging policies in the CWLP, which would require additional housing in the area. Sustainability appraisals identified probable tensions on housing between the plans. The TNP made limited provision for new housing, including a 30 house limit subject to exceptions. The Independent Examiner reported that the 2006 Local Plan housing policies had lapsed, that the TNP stated that the CWLP would determine the numbers of new houses required, and that the “30 limit” could be a way of delivering the requirement. He recommended that the relevant policy be adopted subject to a drafting change. The Council decided to put the amended plan to a local referendum. The claimants, Barratt and Taylor Wimpey, are house builders. They had applied for planning permission to build new homes on three sites within the area of the Plan. The Council refused permission and, following a public inquiry, the Secretary of State’s decisions were awaited. The claimants challenged the decision to put the plan to a referendum. The court rejected the application and dealt with the points of challenge as follows: (1) The sustainability appraisal process, which the Examiner had approved, met the requirements of the Environmental Assessment of Plans and Programmes Regulations 2004 and the underlying EU Directive. (2) Schedule 4B of the Town and Country Planning Act 1990, as amended by the 2011 Act, contains the procedures for preparing Neighbourhood Plans. They must meet a basic requirement that regard is had to national policies, there is a contribution to the principle of sustainable development, there is general conformity with the local development plan and there is compatibility with EU requirements. The Examiner’s role, however, is different to that of an Inspector reporting on a local plan. The Examiner and the Council were able to conclude that the “basic requirement” had been met. (3) The Examiner was a non-executive director of a regional development company, which has an interest in another housing development on the outskirts of Chester. There were different opinions as to whether this development would compete with the Claimant’s proposed developments. On the facts the Judge said “I do not consider that the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that [the Examiner] was biased.”

There has been a string of cases as local communities attempt to use the neighbourhood planning process to fight off new housing developments (see the next case, for example). Again, the Court was able to tolerate potential bias. Contrast, for example, R (on the application of Secretary of State for Communities & Local Government) v Ortona Ltd [2009] EWCA Civ 863, where the Court quashed a

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planning appeal decision because the inspector determining the appeal had, until five years earlier, worked in the planning department of the County Council which was the main objector.

Predetermination

IM Properties Development Ltd v Lichfield District Council [2014] EWHC 2440 (Admin) IMPD applied for judicial review of the Council’s decision to endorse modifications to its draft Local Plan Strategy. The modifications included the release from the green belt of two sites in which other developers had an interest. IMPD had promoted a scheme for a “new village” on a site outside the green belt, but the Council had refused permission for a number of reasons, including the site being outside the settlement boundaries and not being allocated in the emerging local plan strategy. The draft Local Plan Strategy contained no proposals for green belt development because of the strength of local opposition. A paper on the green belt, published during the examination into soundness, advocated postponing any review of the green belt boundary as the Council was at that time satisfied that it could meet its housing needs without green belt release. However, the Inspector recommended that the Plan address the issue, on the basis that finding a site or sites for an additional 900 houses was a strategic matter. He considered that the “new village” was viable and developable but was unable on the limited evidence to find that it would be more sustainable than the Council’s approach. The Council published a Supplementary Green Belt review. The review looked at specific areas where sufficient housing growth to make an impact could be accommodated, rating them against the purposes of the green belt set out in the national framework. It was reported to an O&S Committee, recommending modifications to remove the two highest rated sites from the green belt. IMPD’s consultants made written representations to the effect that its proposals had been given insufficient attention and were preferable to green belt release. The committee supported the recommendations. The matter then went to Cabinet who endorsed the recommendations. Next, before the matter was considered by Council, the Chairman of the Planning Committee emailed group members in these terms: “This is to remind group members who attended the last group meeting and inform those who did not, that the group decided in government parlance to have a three line whip in place at the council meeting on Tuesday. In plain terms group members either vote in favour of the report I will be giving regarding the local plan or abstain. Also if you are approached by anyone promoting alternative sites, please make no comment. If group members are reported making negative comments it would without any doubt derail our local plan. Sorry if you find this a little heavy handed but there is an awful lot at stake. Have a kind weekend.” Full Council met and agreed the main recommendations. Public consultation followed and the next step would be further examination.

The court (Patterson J) dismissed the claim. The reasoning was as follows. (1) Section 113 of the Planning and Compulsory Purchase Act 2004 says that a development plan document can only be challenged by a statutory application under that section, on limited grounds and within a six week period after the adoption of the document. Notwithstanding The Manydown Company Limited v Basingstoke and Deane Borough Council, which was distinguished, this had become a development plan document, the challenge was not brought under section 113, and the Court had no jurisdiction to entertain the challenge, whatever its merits. (2) IMPD said that the email was a “dogmatic instruction” and, applying the “fair minded observer” test, the decision had been predetermined. But section 25 of the Localism Act “makes it clear that just because a decision maker has done anything directly or indirectly which indicated a view that he took or might take on a matter it was not to be taken as an appearance of a closed mind.” This was not

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limited to the public expression of a view, and covered these circumstances. In any event, the Court did “not find that the tenor of the email was so strident as to remove the discretion on the part of the recipient as to how he or she would vote. … A fair minded and reasonable observer in possession of all of the facts would not be able to conclude on the basis of the evidence that there was any real possibility of predetermination as a result of the email.” (3) Members had not misunderstood the test to apply for green belt boundary changes. (4) IMPD said that members had not been advised properly on the status and validity of the “new village” alternative or about a Ministerial statement about the importance of the protection of the green belt made shortly before the Council meeting. This was however immaterial both on the facts and as those matters could be picked up in consultation and further examination.

Relevant Considerations

R (on the application of Nestwood Homes Developments Ltd) v South Holland District Council [2014] EWHC 863 (Admin) The claimant, Nestwood, made a complaint to the Local Government Ombudsman (LGO) about the Council, which resulted in an investigation by the LGO. The LGO issued two reports. The LGO found serious maladministration by the Council and recommended that the Council should publish an apology and make a compensation payment of about £250,000 to the claimant. The Council considered the LGO’s reports and in May 2013 decided to pay £50,000 plus interest to the claimant. The claimant applied for judicial review of that decision. The claimant submitted: (1) The Council failed to provide adequate reasons for its decision, particularly in view of the availability of a general reserve maintained in its accounts. (2) The Council gave excessive weight to the issue of affordability of a payment in line with the LGO’s recommendations and its impact on the local authority’s finances and failed to take relevant considerations properly into account. (3) The Council took the decision in an unfair way, in that it did not give the claimant an opportunity to make oral or written representations relating to its decision about how to respond to the LGO’s recommendations on remedy. (4) The Council acted in a way which gave the appearance of predetermination and unfairness. (5) The decision was irrational and perverse.

The application was dismissed. It was held (1) A local authority was not obliged to accept and act on the LGO’s recommendations as to remedy but it was required to take them seriously. (2) The Council had given sufficient reasons for its decision, to a level adequate to inform the claimant why the Council had come to the conclusion it had. (3) The Council had not given excessive weight to affordability. Although a payment of £50,000 plus interest was well below what was recommended as appropriate, and close to the lowest acceptable limit in the circumstances, it could not be considered to be insignificant. (4) The Council was not required to consider, expressly, making a higher payment. (5) The claimant had been given an opportunity to make written representations about the exercise of the Council’s discretion. The obligation to act fairly did not require the Council to give the claimant an opportunity to make oral representations. (6) The Council had not approached the question with a closed mind. It gave the appearance of responding to the LGO’s 2013 report with a mind open to persuasion in light of the observations in that report. (7) The Council had not acted irrationally or unlawfully.

R (on the application of McClellan) v London Borough of Lambeth [2014] EWHC 1964 (Admin) Lambeth decided to cut down a tree at the back of a library because it was placing the library at risk and expensive to maintain. The library was a listed building and it and the tree were in a conservation area, so there are special controls on felling trees. The cabinet report did not mention the

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conservation area. Lambeth said that it would have been common knowledge, and would not have made any difference, but the court thought otherwise. The Judge said “In my judgment given the history of the decision making process and the reservations that had been expressed by the defendant that the tree would only be felled provided no strong objections were received, the fact that the tree was in a conservation area was not considered could have made a difference to the defendant's decision as it was a fundamental element of the factors which should have been taken into account in deciding whether or not to confirm the decision to fell the tree. I conclude that the test in [Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P&CR 343352] does not require the court to be satisfied that there was certainty that consideration of the matter would have made a difference to the decision rather that there was a "real possibility" that it would. In all of those circumstances I conclude that the failure to take into account a material consideration, namely that the tree was within a conservation area was fundamental to the decision. Had the members of the defendant's Cabinet weighed the impact that the loss of tree would have on the character of the conservation area as a whole there is a real possibility that a different conclusion would have been reached. In those circumstances it is appropriate to grant relief.”

The application for judicial review succeeded and the decision to fell the tree was quashed.

R (on the application of Sky Blue Sports & Leisure Ltd & Others) v Coventry City Council [2014] EWHC 2089 (Admin) Coventry City Football Club played its home games at the Ricoh Arena in Coventry under a sublease and licence from ACL, the leaseholder of the ground. The Council owns the freehold of the Arena, and is the ultimate owner of 50% of ACL. The club was in financial difficulty and, following the collapse of a plan to buy an interest in ACL, unable to pay the rent for the Arena, so that ACL could not service its bank loan. The Council resolved to lend £14.4m to ACL. The owners of the club challenged that decision, on the grounds that: (1) Contrary to EU law, the loan amounted to State aid which was not notified to the European Commission. (2) The Council failed to take into account several identified material considerations because senior officers of the Council failed to draw them to the attention of Council members. The decision to make the loan was legally irrational or perverse, in the sense that there was simply no rational explanation for the Council's decision to make the loan on the terms that it did and no reasonable authority could have entered into such a transaction. The court (Hickinbottom J) held: (1) “On the basis of all the evidence, in my judgment, a rational private market operator in the position of the Council might well have considered that refinancing ACL on the terms in fact agreed was commercially preferable to allowing ACL to become insolvent.” …” I simply cannot say that the loan extended by the Council to ACL would not have been entered into, on the terms in fact agreed, by any rational private market operator in the circumstances of the case. In my judgment, the transaction fell within the wide ambit extended to public authorities in this area; and clearly so. It was not State aid.” (2) On the facts, the officers’ report did not omit relevant considerations. “As I have indicated, officer's reports are to be read broadly and as a whole. Reading the Hastie Report thus, I consider the belated criticism of it unfounded. In my view, it set out, properly and succinctly, the important relevant matters that the councillors were required to take into account, including the relevant risks of the proposal as well as the potential benefits. The courts have been rightly cautious about requiring officers' reports to be too full …: the dangers of such a requirement are obvious. A focused and succinct report, such as Mr Hastie's Report in this case, is in my judgment positively to be commended.” Nor was the decision irrational, in view of the earlier findings.

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The application for judicial review was dismissed.

Defamation

Meadows Care Limited and Pathfinders Childcare Limited v Colin Lambert and Rochdale Metropolitan Borough Council [2014] EWHC 1226 In this case, a local authority successfully defended a defamation claim brought against it by two companies that operated residential children’s care homes in its area. Mr Justice Bean rejected claims that remarks made by Councillor Lambert and their subsequent re-publication in the local press defamed the claimants, who were dependent for their work on local authority referrals, causing them to suffer substantial loss of business. Rather, the words complained of were held to be an expression of opinion that did not involve an allegation of culpable behaviour or negligence on the part of either of the claimants or their staff. The Rochdale grooming case, as it came to be known, triggered a wave of pressing public concern regarding the sustainability of the British care system in protecting the most vulnerable young people. The victims of the grooming case included a number of girls and young women who were or had been in care. Following the convictions of the nine men responsible for the range of serious sexual offences against over 40 vulnerable girls and women, the council established a Rochdale Community Forum, open to both the public and press. It was in this context that the claimant care homes asserted that Councillor Colin Lambert, the Leader of Rochdale Metropolitan Borough Council, made defamatory allegations of fact, namely that the claimants were failing in their prime responsibility to keep children in their care safe. There was argument about the actual words used, and whether this aspect of the pleadings could be amended at the hearing, but the claimants said that the words complained of included the following: “There are 41 of these private homes in the Borough. The issue is not that they are private, the issue is that the legislation around them is totally inadequate and they do not do what it says on the tin. They do not protect vulnerable children, they do not re-integrate them back into the community, they do the opposite. And what previous governments and the current government need to do is to review our cared for children in the UK and this needs to be a starting point. These homes, 41 here and yet Rochdale has no say on any child that comes here. How can a host authority, be they Essex or Newcastle or Sunderland, say it is sensible and safe to send a child to a private care home in the borough of Rochdale in the current climate, but that is what they are still doing. That is the wrong decision.”

Meadows Care Limited was the largest of the seven private sector operators of children’s care homes in Rochdale. Pathfinders Childcare Ltd was a smaller provider with two homes in the area. Both claimants depended for their work on children being referred to them by the local authorities. As such, they claimed that these words resulted in a substantial loss of revenue given that they “meant and were understood to mean that the claimants operate care homes which are dangerous, unsafe and damaging to both vulnerable children in their care and society and therefore no children should be placed with them and they should not be allowed to operate.” The claimants further argued that these words “meant and were understood to mean that the claimants were directly culpable for the failing to look after children in their care with the result that they were subject to the worst kind of sexual exploitation and abuse, and therefore no child should be placed with them as they might be unsafe and at risk of the same.”

There would have been a separate argument about causation even if defamation had been established. The homes would have had to prove that the loss of income that followed the Rochdale case was attributable to the comments, not by the reaction to the situation in Rochdale generally. 78

In deciding whether the words complained of were indeed slanderous, the comments of Cllr Lambert were to be taken as a whole. The primary issue of establishing meaning concerned the impression that a hypothetical reasonable listener would have been left with. Mr Justice Bean rejected the claim, finding that the meaning of the words complained of did not bear any meaning which was defamatory of the claimants. Taken as a whole, the judge found the meaning to be as follows: “Private care homes, of which there are 41 in Rochdale, do not protect vulnerable children and do not re-integrate them into the community; they do the opposite. This is because: . The legislation governing private care homes is totally inadequate; there should be a parliamentary review of it. . Rochdale has no role in the life of any child sent here by another authority. . If children were sent out of their own community to a secure home they would be safe. No one could get in, they could not get out, and they would have full access to educational, medical and social services. . By contrast, where children go missing from a private care home the local council in that area picks up the social problems and the local health authority picks up the medical problems. Home authorities are washing their hands of the issue because they are not asking whether the welfare needs of the child are met by signing a contract with a provider outside their own area. . Rochdale is in any case the wrong place for another local authority to send a troubled and vulnerable child in the current climate (following the grooming case.” “The allegation is plainly against the system” held the judge. The words complained of were found to be an expression of opinion rather than a statement of fact: they did not involve an allegation of culpable behaviour or negligence on the part of either of the claimants or their staff, nor on the part of the seven private providers of children’s care homes in Rochdale or their staff. The asserted lack of child protection was underlined as a consequence of legislative and systemic defects, rather than the claimants’ direct involvement. The claim was accordingly dismissed.

Given the meaning which the judge attributed to the words, it is not surprising that he found them not to have been defamatory. The events that had occurred prompted an understandable process of soul searching by the Council and the other agencies involved. Councillor Lambert and the Council’s Chief Executive, Jim Taylor, gave evidence to the Parliamentary Home Affairs Select Committee on the 12 June 2012. On that occasion, too, Councillor Lambert said that there was a need for legislative change. He focussed on the placement of children in care homes in Rochdale by other local authorities, and the need for more data sharing between the home authority and the Council as receiving authority and other agencies in Rochdale. That was entirely consistent with the meaning the Judge placed on his comments to the Community Forum a few weeks earlier. Plainly Councillor Lambert was attacking the concept of placing children outside your area, not the quality of care in local homes. Child sex exploitation and the like thrive in the cracks where too many agencies are each responsible for too little.

This case is a reminder that local authority members and officers must tread a difficult line between expressing frank and fearless opinions on matters of important public concern and avoiding meaningful debate because of the fear of legal proceedings. It is all the more difficult for members, who will inevitably extemporise, and who are always in the public eye. The Rochdale grooming case was the most serious scandal to have occurred in the area for many years, resulting in a climate of understandable and pressing public concern about the lessons that should be learned. That concern needed to be addressed in an open and transparent forum. The decision can therefore be seen as wider recognition by the court of the realities of accountability and transparency linked by the relationship between the citizen and local government and the challenges currently faced in managing that relationship.

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Thompson v James [2014] EWCA Civ 600 Ms Thompson, the claimant, was a community councillor, who published a blog which criticised a local authority. The Chief Executive of the local authority wrote a letter in which he said that the claimant had been running a campaign of harassment, intimidation and defamation of local authority staff and members. The claimant brought a claim for libel against the Chief Executive. The Chief Executive counterclaimed, alleging that some of the postings on the blog had defamed him. Ms Thompson’s claim was dismissed on the basis that what the Chief Executive had written was true. The counterclaim succeeded in respect of three of the five postings. The claimant appealed the defamation decision to the Court of Appeal and lost, again. Her blog included this: “News on how other front line services will fair (sic) in this afternoon's debate will soon emerge. I wonder if the Chief Executive will resign and save us all a few quid? Doubtful – he still has many “visions” to fulfil. Will he do everything in his power to protect the “officers club” slush fund? You bet he will.” and “Mark James and the Council Slush Fund. Carmarthenshire County Council Chief Executive, Head of Law and Head of Resources now have delegated powers to commence and fund (with taxpayers' money) libel proceedings against the public and the press on behalf of themselves and other officers. The Council, as a governing body, has now enabled itself to bring and fund illegal actions under the cloak of a private claimant. This is the only Council in the UK to have granted themselves these powers. This is unlawful, open to abuse, a threat to free speech and a grave misuse of taxpayers' money.”

She said that “slush fund” referred to the indemnity, and pleaded “honest comment”. The trial Judge rejected this defence on the basis that she had not proved any fact supporting the comment that Mr James would act corruptly and that, in any event, she had no belief that Mr James would so act. Mr James’s counterclaim succeeded.

Later, she added this: “I also hear a rumour that Carmarthenshire Council staff are going to be asked to take a 10% pay cut. It wouldn't surprise me. Isn't it lucky that Mark James and his cronies had the foresight to finance various deals ( this for example), just before all this budget nonsense came along and, of course, the Council has to keep its slush fund nicely topped up …” Her appeal was that the Judge’s finding that the posting accused Mr James of unlawfully and corruptly using public money for himself or his cronies was unsustainable or, at any rate, not the true meaning of the posting in its context.

And this: “… typically the Council is back peddling and trying to avoid the clear conclusion that they have completely ignored public opinion and there (sic) own consultation although why we should be surprised at that I don't know. Its all a bit worrying, lets hope that the Chief Executive Mark James takes his role of returning officer (for which he is paid a fat fee) a little more seriously during important elections – and gives an accurate result, not just the one that the Council prefers! Perhaps we should be grateful the Council didn't go for “the Mark James” or … although on the subject of Council pantomime, … I am sure Mr James would make a splendid Abanazer … or would that be Pinocchio.”

Again, the counterclaim succeeded.

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The Court of Appeal was not satisfied that the trial Judge was wrong. Longmore LJ said “The natural meaning of “slush fund” is that money is either being used for improper purposes or, at the very least, for purposes which the provider of the funds is not prepared publicly to acknowledge because he fears that legitimate criticism of use of such funds can be made. In the context of local authority expenditure, the ordinary reader would regard the use of the term “slush fund” as an imputation that the provider of the funds is acting corruptly. The purpose of using the word “slush” as part of the term “slush fund” is to imply that the money is dirty money.”

He also found that the statements were defamatory of Mr James, not just of the Council, and that the right to freedom of expression under Article 10 ECHR did not tip the balance in favour of a blogger and against a public official when determining the meaning of a phrase.

Consultation

Draper v Lincolnshire County Council [2014] EWHC 2388 (Admin) Lincolnshire needed to reduce the cost of its library service by £2 million. It proposed to reduce the number of libraries from 44 to 15, with targeted provision for those who lived more than 30 minutes from a library, including community-run facilities served by a mobile library. It undertook a public consultation exercise asking for alternative suggestions, but which made it clear that neither the savings nor the reduction in the number of libraries could be changed. It asked for expressions of interest in operating community libraries. It received three suggestions. One was from a charity, Greenwich Leisure Ltd (“GLL”), which stated that it could take over the entire service and save £1.8 million. All three were rejected. The Council said that GLL’s proposal would require OJEU procurement taking at least six months, with no guarantee that the savings would be achieved.

The claimant sought judicial review, arguing that the Council had closed its mind to alternative proposals and had failed to consider GLL’s expression of interest properly or to seek further information from GLL.

The court (Collins J) held that the consultation exercise was flawed. Consultation should be at a formative stage in the decision-making process, but options which departed from the Council’s proposals would not be entertained. Secondly, GLL’s proposal was an expression of interest under the “right to challenge” provisions of the Localism Act 2011. It should have been treated as such. Further information could have been sought. The Council’s options were to reject the proposal (on specified grounds), modify or accept it by starting a procurement exercise. It had rejected it because of the need for a procurement exercise. In addition, the disadvantages of procurement were overstated. Thirdly, the Council were wrong to consider that GLL’s proposal was potentially outside the scope of the consultation exercise.

On consultation, the moral of this case is that whilst it is up to the authority to decide how to consult, it must not rule anything out. It is also the first case on Chapter 2 of Part 5 of the Localism Act 2011. The “right to challenge” applies to an “expression of interest”, meaning “an expression of interest in providing or assisting in providing a [service provided by or on behalf of that authority in the exercise of any of its functions] on behalf of the authority” submitted by a “relevant body” – including a voluntary or community body or a charity. This covers a lot of ground. Lincolnshire called the responses it was seeking “expressions of interest”, which did not help their argument that neither they nor GLL thought they were following the right-to-challenge process, but clearly the legislation will apply even if you do not say that it will. As the grounds on which an expression of interest may be

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rejected are very limited, and acceptance must be followed by procurement, it is easy to find yourself in difficulty.

R (on the application of United Company Rusal PLC v The London Metal Exchange [2014] EWHC 890 (Admin) Rusal is an aluminium producer. LME operates metal warehouses. The 1998 crash led to overstocking and queues at the warehouses, damaging the market. LME consulted on a proposal to reduce the queues by requiring the amount loaded in to match the amount loaded out if a warehouse had a wait time for delivery of over 100 days. After the consultation it announced that it would implement the proposal, but with a 50 day threshold. This would cause an immediate fall in the price for aluminium. Rusal sought judicial review arguing that the consultation was unfair, principally because it had not explored alternative options, including a suggestion that there should be “rent bans” or rent holidays when delays where excessive, which LME thought might contravene competition law, and that the decision had not taken into account the impact on the price and the effect on metal producers.

The court (Phillips J) held as follows:

(1) Contrary to some High Court authorities, a public body did not have to consult on all “viable” options. It could narrow the options before consultation provided that that course of action had not been decided on and could be altered following consultation. Alternative options need only be covered if there were specific reasons why it would be unfair not to do so. Here, there were specific reasons why Rusal’s preferred options should have been included. They had been recommended in an independent report and were mentioned in the consultation document, so consultation responses would inevitably address them but in ignorance of the reasons why they had been rejected. LME had recognised the need for further discussion during the consultation, and was aware of the impact on metal producers. The consultation was procedurally unfair. (2) That failure meant that relevant factors had not been taken into account. However on the facts there was no need to consider the impact on market prices, which would have been short term, in a fluctuating market, and insignificant. And Rusal were entitled to reduce the threshold period without further consultation. The Court of Appeal reversed the finding (R (on the application of United Company Rusal plc) v London Metal Exchange [2014] EWCA Civ 1271). On the facts, they were not persuaded that fairness required the rent ban option to be spelled out. Lady Justice Arden said: “The cases in this field demonstrate to my mind that the court should only intervene if there is a clear reason on the facts of the case for holding that the consultation is unfair. It is for the court to decide whether the obligation of fairness has been broken. Moreover, the application of the duty of fairness is intensely case-sensitive. This is not an area of law where it is possible to provide statements of general principle. … It is also clear from the authorities that the courts have to allow the consultant body a wide degree of discretion as to the options on which to consult: as the Divisional Court held in The Vale of Glamorgan Council v Lord Chancellor and Secretary of State for Justice [2011] EWHC 1532 (Admin) at [24]: “…there is no general principle that a Minister entering into consultation must consult on all the possible alternative ways in which a specific objective might arguably be capable of being achieved. It would make the process of consultation inordinately complex and time consuming if that were so.” … Consultation is not negotiation. It is a process within which a decision maker at a formative stage in the decision making process invites representations on one or more possible courses of action. … there is in general no obligation on a public body to consult on options it has discarded.”

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Again, although you need not consult on unattractive options, you cannot rule them out, and you may need to include them in the consultation if in the circumstances it would be unfair to do so. “Fairness” is increasingly the criterion for consultation, procedural irregularity and legitimate expectation challenges.

R (on the application of Winder & Others) v Sandwell Metropolitan Borough Council [2014] EWHC 2617 The Welfare Reform Act 2012 and the Local Government Finance Act 2012 amended the Local Government Finance Act 1992 to abolish statutory council tax benefit and oblige each billing authority to make a council tax reduction (CTR) scheme to replace it. Sandwell drew up a scheme, consulted on it and carried out an equalities impact assessment. There was a concern that there would be an influx of applicants for a council tax reduction from areas where property was more expensive. The requirement was made to discourage such migration and, if such individuals moved to Sandwell, to ensure that they did not put a further burden on the CTR Scheme. At full Council, a proviso was added. The final form of words was “For new claims, only those residents that have lived in the Borough of Sandwell for a minimum of two years immediately prior to the date the new claim is received by the Borough of Sandwell will be eligible for [CTR] (with the exception of service personnel returning to live in Sandwell) unless there is a statutory requirement otherwise." The claimants were refused CTR on this basis and sought judicial review.

The court (Hickinbottom J) quashed the decision. He dealt with the heads of claim as follows: (1) The claimants said that the residence requirement was outside the Council’s statutory powers. The court agreed. Section 13A(2) of the 1992 Act requires the scheme to specify "the reductions which are to apply to amounts of council tax payable, in respect of dwellings situated in its area, by … (b) persons in classes consisting of persons whom the authority considers to be, in general, in financial need". This did not permit the introduction of different criteria. The decision was outside the Council’s statutory powers. (2) The decision failed to take into account the government’s policy objectives and the consequences if every authority imposed a similar requirement. These were relevant factors and the decision was unlawful. (3) The Council was required by the legislation to consult on the scheme, and had not consulted on this element. (4) The requirement was discriminatory and a barrier to freedom of movement within the EU. (5) The EIA had not addressed the point and the Council was in breach of the PSED.

Sandwell failed on all counts. On consultation, the lesson is that you cannot introduce a new element at the last minute if you have undertaken a statutory consultation exercise which omitted that element.

R (on the application of Moseley v London Borough of Haringey [2014] UKSC 56 This was another case on CTR, this time reaching the Supreme Court. If a local authority failed to make its own scheme, the outcome was the imposition of a “default scheme”, which was seen by most authorities as financially disadvantageous. The issue was complicated by the late introduction of a “transitional grant scheme” (TGS) providing additional short-term funding if the authority’s scheme met certain criteria. Haringey expressed political dissatisfaction with the legislation, and decided that neither the default scheme nor a TGS compliant scheme was in its financial interests. Crucially, it proceeded on the assumption that it could not spend any more money on CTR than the funding made available by the Government, which meant that there was less money available than the previous year. Its consultation was limited to the options that followed, and it selected the “least bad”. Lord Wilson said that it could have made cuts elsewhere, or applied balances, and that the consultation paper

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should have at least mentioned those options. He disagreed with the Council’s argument, which the lower courts had accepted, that these options were self-evident.

In passing: . He expressly adopted the submission approved in R v Brent London Borough Council, ex parte Gunning, (1985) 84 LGR 168 “Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. o First, that consultation must be at a time when proposals are still at a formative stage. o Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. o Third, that adequate time must be given for consideration and response and, finally o fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.” . He said that “It is hard to see how any of [Sedley’s] four suggested requirements could be rejected or indeed improved” and called them “a prescription for fairness”. . There were three additional points, again derived from existing case law. o First, “the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting” – in this case some of the most economically disadvantaged members of the public. o Second, “the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit”. o Third, “sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options” and “even when the subject of the requisite consultation is limited to the preferred option, fairness may nevertheless require passing reference to be made to arguable yet discarded alternative options”.

The other members of the Supreme Court agreed, but Lord Reed approached the question in a different way. He said that this was not about common law fairness, because the duty to consult was statutory. The objective of the statutory requirement was to allow those affected to participate in the decision-making process. It would not always be necessary to refer to options that had been rejected, but “the question will generally be whether, in the particular context, the provision of such information is necessary in order for the consultees to express meaningful views on the proposal”. This test had not been met.

This is now the leading case on consultation, and Lord Wilson’s formula will be repeated many times.

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R (on the application of LH) v Shropshire Council [2014] EWCA Civ 404

The claimant was 63 years old and had a learning disability. She challenged the decision to close a day centre which she used. Shropshire had decided to review the provision of adult services. Two proposals, to provide more services in the home to reduce the need for residential care and to refocus day provision away from day centres toward personalised budgets, would save £9 million. Some day centres would close. There was widespread consultation, from which it was apparent that there was some support for the principle of personalisation but concern at the closure of day centres and a desire that they should be made more attractive. A second consultation related to increased personalisation and charging for day services, including Q&A sessions at public meetings where the principle of day centre closures was discussed, following which the relevant policies were approved. Shropshire then reviewed its day centres, and the Portfolio Holder received a report, plus an equality impact needs assessment (EINA), recommending that three should close, and approved the recommendations (with a temporary reprieve for one of the centres). The issue was picked up by the local press and the claimant started these proceeding, alleging inadequate consultation and failure to have regard to the public sector equality duty. The application had been rejected at first instance, and the Council had gone ahead with the closure.

The Court of Appeal held as follows: (1) There was no statutory duty to consult, but it was common ground that fairness required consultation. There had been consultation on the underlying principles, but the question was whether there needed to be consultation with individual users of specific centres that were to close. (2) If fairness required consultation with individual users, the Council could choose to consult more widely, but it could not bypass individual consultation, which fairness required in this case. The omission was unlawful. (3) The Council had to have due regard to the public sector equality duty. It had done so in the more general consulations and decision-making. The failure to consult on the closure of individual centres could be said to breach the duty, but no more than that. (4) The centre had been closed and the staff dispersed. Justice to the claimant did not require that to be unpicked, and it would not be consonant to good administration to do so. A declaration would be made, but no further order.

Curiously this belies Lord Wilson’s attempt to encapsulate the law on consultation. In addition to the Sedley test, you have to consult all the right people. It does fall within his additional points though. Here, fairness required consultation with users, who would be disadvantaged, specifically on the closure of this day centre.

R (on the application of Regas) v Enfield London Borough Council [2014] EWHC 4173 (Admin) A landlord applied for judicial review of the Council’s decisions to designate its entire borough for both additional licensing of houses in multiple occupation and selective licensing of private rented sector properties under the Housing Act 2004 s.56(3) and s.80(9). The Council had held meetings with landlords and others in the borough and consulted locally on the proposal.

The court (McKenna J) held that the consultation had been inadequate. First, the Council had not consulted landlords based outside Enfield. Second, the Secretary of State’s General Approval 2010 for such schemes required a 10 week consultation period. The Council had only allowed 8 weeks. The earlier meetings did not count because at that stage there was no draft proposal and there had to be some precision in the identification of what was to be designated and its consequences so that the extent of the effect could be appreciated. The application for judicial review succeeded.

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R (on the application of McCann v Bridgend County Borough Council [2015] All ER (D) 15 (Jan) The Council decided to close a school and merge it with another school. The claimant, a member of a campaign group which was set up to oppose the closure, applied for judicial review of the Council’s decision. The claimant argued that the Council’s consultation over its proposals did not comply with the School Organisation Code issued under the School Standards and Organisation (Wales) Act 2013 because: (1) It did not comply with the Code’s requirements in respect of identification of alternatives. (2) The Council did not develop and consider its proposal in a properly evidence-based way. (3) The Council had failed to comply with the Code’s requirements in respect of the assessment of the impact of closure on the school on the community or the production of a community impact assessment. (4) The Council did not provide regional Assembly members with copies of its consultation document, consultation report, statutory notice and objections report.

The application for judicial review succeeded. It was held: (1) The Council had failed to set out in the consultation document the alternatives that had been considered and the reasons why they had been discounted. The argument that the alternatives had not been realistic or viable and therefore did not need to be identified in the consultation was not a sufficient answer under the Act and the Code. (2) No reason had been given as to why the interests of pupils and the quality of outcomes, provision and leadership and management should not be treated as the most important consideration or why outcomes and provision for existing pupils should not be at least equivalent to those which the school currently provided.(3) The Council had not provided the community impact assessment with the consultation document. (4) The council had failed to notify the regional Assembly members and the outcome would not inevitably have been the same if the regional Assembly members had been provided with the information to which they had been entitled.

R (on the application of Robson and another) v Salford City Council [2015] All ER (D) 150 (Jan)

This case has been considered earlier in the context of the public sector equality duty. It is appropriate to consider it again in respect of consultation. In this case, although the court found that the consultation material was incomplete, it decided that consultees had not been misled, and found the consultation to be fair overall.

R (on the application of T) v Trafford Metropolitan Borough Council [2015] EWHC 369 (Admin)

This was another case in which a local authority’s consultation was found to be lawful.

The Council proposed to cut its adult social care budget. The claimant sought judicial review of this decision. He argued that the Council had failed to provide adequate information on whether there were alternatives to the proposal, which would result in a lesser reduction of funding for adult social care services.

The application was dismissed. It was held that fairness had not required consultation upon arguable yet discarded alternative options. Before presenting the proposals to the public in the way that it did, the Council had considered the alternatives of increasing council tax and using reserves. Information as to why those alternatives had been rejected had been available to the public. There was a real doubt as to whether extra steps would have made any real difference. Overall, having chosen to consult, the Council had been lawfully entitled to present its preferred option and to consult on the best way to achieve that.

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R (on the application of Morris and another v Rhondda Cynon Taff County Borough Council [2015] All ER (D) 166 (May)

In this case, the local authority’s consultation was found to be fair and the local authority’s decision to cease providing full-time nursery education for children from the age of three free of charge was found to be lawful. The local authority had needed to make savings and so had carried out a comprehensive review of its services. As a result of that, the local authority had decided to cease providing full-time nursery education for children from the age of three free of charge. A consequence of this was that free school transport for the children concerned was terminated. The claimants sought judicial review of the local authority’s decision. They argued that the local authority’s consultation had been inadequate because the local authority had not provided information about alternatives. They also argued that the consultation had been insufficiently fair and accurate and had been flawed because it had excluded any reference to the transport consequences of the decision. They also suggested that the local authority was in breach of its duty under section 22 of the Childcare Act 2006 to secure sufficient childcare for working parents.

The application was dismissed. The court held that: (1) There was no inviolable rule that alternatives had to be consulted upon in every consultation exercise. Sometimes fairness might require this, so that consultees could make sense of the consultation exercise. In such a case, the alternatives would have to be realistic alternatives. What was realistic would depend upon the particular circumstances of the consultation to be carried out. In this case, the consultation exercise had been fair in all of the circumstances and had dealt adequately with the issue of realistic alternatives. (2) The issue of childcare had been approached on the basis of a correct appreciation of the local authority’s statutory duty. The local authority had asked itself the right question concerning its duty to secure sufficient childcare for working parents so far as reasonably practicable and had taken reasonable steps to acquaint itself with the relevant information to enable it to answer the questions correctly.

This can be contrasted with the case of R (on the application of West and others) v Rhondda Cynon Taff County Borough Council [2014] All ER (D) 101 (Jul). That related to a decision in the previous year by the same local authority to reduce the amount of nursery education provided to three and four year olds. The decision was challenged by way of judicial review. The claimants argued that the local authority had failed to have due regard to its duty under section 118 of the School Standards and Framework Act 1998 to secure that the provision of nursery education for three year olds was sufficient for its area. They argued that it had failed to fulfil its duty under section 22 of the Childcare Act 2006 to secure, so far as was reasonably practicable, sufficient childcare for working parents. They said that the local authority had failed to have due regard to its duties under sections 17 and 18 of the Children Act 1989 to provide for children in need. They said that it failed to have due regard to its duties regarding child poverty under the Children and Families (Wales) Measure 2010. They also said that it failed to have due regard to the equality needs in the Equality Act 2010.

The challenge succeeded and the decision was quashed. The court found that: (1) The authority had not had due regard to the relevant statutory need, as had been required by section 118 of the School Standards and Framework Act 1998. The material before the authority had referred to the advantages and disadvantages of full-time versus part-time nursery education but the authority’s duty under section 118 of the School Standards and Framework Act 1998 had been ignored in the report. The authority had not asked itself the question as to what was sufficient nursery education for its area and that could not be inferred. (2) The authority had not had due regard to its duty under section 22 of the Childcare Act 2006. The report and the accompanying documents had not referred to the authority’s statutory obligations, nor identified the issues to be determined, arising from those obligations.

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Therefore, the authority had not been provided with a framework in which to consider and properly address the issue. (3) The authority had appreciated that children at risk might face greater risk at home due to not being in school full-time until reception year. However, the authority had not been referred to its statutory duties under the Childcare Act 2006 and therefore had no statutory framework in which properly to consider the consultation material. There had been no proper attempt in the equality impact assessment to analyse childcare provision and the effect of the proposed change on childcare provision for children in need. The authority had not complied with its duty under section 18 of the Children Act 1989. (4) The claimants had not shown that the authority had failed to have regard to its statutory duties and that the authority’s own plans to combat child poverty had been an error of law. (5) The deficiencies that the claimants had identified in the equality impact assessment had not led to the conclusion that the authority had failed in its duty to have due regard to the equality needs under section 149 of the Equality Act 2010.

These two cases show how a similar decision can be found lawful or unlawful, depending on whether a local authority complies with everything required of it. Clearly by the time it took its decision in 2015, Rhondda County Borough Council had learnt from its experience of judicial review the previous year and took steps to make sure that its decision would withstand the challenge that was brought against it.

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Miscellaneous

R (on the application of Maries) v Merton LBC [2014] EWHC 2689 (Admin) The Council decided to appropriate a recreation ground under section 122(1) of the Local Government Act 1972, so that it would be held for different purposes and in order to free it from the statutory trust protecting its status as public open space. The Council wished to arrange for parts of the land to be transferred to an adjacent school, and for other parts to be used by the school as well as by the public, such that at times the school would have exclusive use, although the recreational facilities for the public would be improved. The key criterion is that the land is “no longer be required for the purposes for which it is currently held”. The proposal was advertised and there were many objections. The Court applied Dowty Ltd v Wolverhampton Corporation [1976] 1 Ch 13. The principles are: (1) Whether land is still or is no longer required for a particular purpose, meaning no longer needed in the public interest of the locality for that purpose, is a question for the local authority, subject to Wednesbury principles, and not the court. (2) The statute is concerned with relative needs or uses for which public land has been or may be put. It does not require it to fall into disuse before the authority may appropriate it for some other purpose. (3) he authority is entitled when exercising its appropriation power to seek to strike the balance between comparative local (public interest) needs: between the need for one use of the land and another with the wider community interests at heart. It is for it to keep under review the needs of the locality and is entitled to take a broad view of local needs.

On the facts, the Council was entitled to decide that the criterion was met, and the challenge failed.

“Appropriation” is a peculiar local government concept. The idea is that when you acquire land under a statutory power for a particular statutory purpose you then hold the land for that purpose and cannot use it for a different purpose unless you “appropriate” it. Technically, the consequence is that the costs of owning the land will be charged to a different part of the Council’s accounts, which is less important now than when the concept was introduced. Legally, appropriation allows you to use the land for a different purpose, and may free the land from restrictions. It is particularly helpful, for example, to appropriate land to planning purposes so as to free it from restrictive covenants and the like, which then become a matter of compensation rather than land use. But the statutory criteria for no longer holding the land under the old power, and for holding it for the new power, must be met. This case helpfully confirms that the “no longer be required for the purposes for which it is currently held” test involves a value judgement, not a determination that it could not possibly be used for the old purpose.

R (on the application of Project Management Institute) v Minister for the Cabinet Office and others [2014] EWHC 2438 (Admin) A committee of Privy Councillors recommended that APM be granted a Royal Charter even though it did not fully meet the criteria. PMI, a competitor, sought judicial review. The Court (Mitting J) held that the decision was not susceptible to judicial review.

(1) The decision would not alter PMI’s rights and obligations or deprive it of any benefit or advantage. It would be wrong to extend judicial review into this field. (2) The published policy made it clear that the criteria were not rigid standards. (3) There was no substance to the challenge based on the application of the criteria. These were matters of judgement.

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(4) The government’s previous dealings with APM, promoting qualifications which APM had adopted, did not evidence bias. In addition, the committee was not exercising a judicial function and did not need to meet the standards that that would imply. (5) The facts, including the fact that a Government official had recommended the proposal with the support of all relevant government departments, did not support the allegation of predetermination, in the absence of any evidence of bad faith.

This case illustrates the principle, which needs to be aired from time to time, that not every decision of a public body is susceptible to judicial review.

R (on the application of Keep Streets Live Campaign Limited) v Camden London Borough Council [2014] EWHC 607 (Admin) The Council decided to adopt Part V of the London Local Authorities Act 2000 to require busking and certain other types of street entertainment to be licenced, and a street entertainment policy. This excluded a list of entertainments such as Punch and Judy shows (without music), juggling (but not with sharp objects), morris dancing and carol singing. There had been an increase in increase in the numbers, noise levels and regularity of busking, and in the number of complaints, with associated petty crime. “Busking patrols” were costly and had not solved the problems. They consulted on the policy and resolved to approve the policy, adopt the Act throughout the Borough, and to agree the exemptions, regulations and fees. The report to Council mentioned the statutory criteria – if the legislation is to apply to part of the Borough the activities in question must “constitute a statutory nuisance or are an undue interference with or inconvenience to or risk to the safety of persons using a street” - and the effect, and drew attention to performers’ rights under the European Convention on Human Rights, specifically Articles 8, 10 and 14.

The claimant challenged the decision, which was the subject of some controversy, arguing that: (1) The definition of busking was too wide, and the exemptions unclear - exploring the scope for the likes of whistling, singing, telling a joke, contortionism, rapping, beat boxing, ventriloquism and traditional seasonal festivities other than carol singing (2) The statutory criteria applied even if the Council decided to adopt the legislation for the whole of the Borough, and there was no factual analysis from which the Council could have come to the view that they were met, and (3) the interference with the performers’ ECHR rights was not necessary and proportionate.

The court (Patterson J) held:

The claimant’s application for judicial review was dismissed. (1) Although a punitive law must be “sufficiently clear and certain to enable [a performer] to know what conduct is forbidden, it would be impossible to come up with an absolute definition, the concepts would evolve and performers could seek advice. The definitions were sufficiently comprehensible. (2) There was sufficient material from which the Council could have concluded, and they did conclude, that the criteria were met. The “whole Borough or part of the Borough” point was therefore immaterial, but on balance the Council was right. (3) The Council “has adopted a policy which, in my judgement, is both necessary and a proportionate response to the issue of busking. It has striven to introduce a policy which holds the ring between promoting economic growth through fostering dynamic busking activity across the Borough but balancing that with the requirements of its residents and other economic activity which contributes to the well being of Camden. It has done so in a way which, in my judgement, is lawful.”

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We eagerly await the attempts of Camden’s imaginative street performers to explore the boundaries of what is and is not permitted.

Williams v Patrick and others [2014] EWHC 4120 (QB) The petitioner challenged the validity of a local government election for a ward in the London borough of Hackney. The ballot boxes had been held in a sealed room overnight. The petitioner claimed that the returning officer had breached election law by delaying the count beyond the four-hour period specified in the Parliamentary Rules and storing the ballot boxes overnight, with insufficient security, so that they could be tampered with. The court (Price QC) held that: (1) The Parliamentary Rules did not apply to local government elections. When the four-hour rule was introduced in 2010 no equivalent rule had been added to the Local Elections (Principal Areas) (England and Wales) Rules 2006. (2) The overnight storage of ballot boxes did not raise a rebuttable presumption that interference and tampering with the boxes and ballot papers had occurred. There was no evidence of tampering, there had been careful planning of the security arrangements, and the count centre was a secure and suitable location for the ballot boxes to be stored overnight.

R (on the application of Reverend Nicolson) v Tottenham Magistrates [2015] EWHC 1252 (Admin)

This case was said by the judge who heard it, Mrs Justice Andrews, to raise “issues of significant public interest to both council tax payers and local authorities relating to the costs sought by local authorities with regard to the enforcement of unpaid council tax”.

The claimant applied for judicial review of the decision by Tottenham Magistrates (“the Magistrates”) to award Haringey London Borough Council (“the Council”) costs of £125 against the claimant, as costs reasonably incurred in obtaining a liability order for unpaid council tax. The claimant’s challenge focused on the lack of information that the claimant said was necessary for the Magistrates to address their minds to the question whether the essential causal connection between the costs claimed and the obtaining of the order had been established. The claimant also argued that the Magistrates appeared to have confused the reasonableness of the amount of the costs with the question of whether that sum was reasonably incurred.

When the liability order was made against the claimant, he raised no objection to that but he raised queries about the level of costs that were being claimed by the Council. He asked the Magistrates and the representative of the Council how the figure for costs had been reached. He also gave examples of lower costs charged by other local authorities. The Council’s representative said that the sum had been agreed between the Council and the court but neither the Council’s representative nor the court gave him any explanation of how the figure of £125 represented costs reasonably incurred in obtaining the liability order. The claimant applied to state a case under section 111 of the Magistrates Court Act 1980, asking the magistrates to justify the basis upon which the court had satisfied itself that the sum of £125 represented costs reasonably incurred and submitting that there had been an error of law. The Magistrates decided not to state a case, so the claimant applied for judicial review.

Regulation 34(7) makes provision for a liability order to be made in respect of an amount equal to the aggregate of the sum payable, and a sum of an amount equal to the costs reasonably incurred by the applicant in obtaining the order. The court said that means that the Magistrates must be satisfied (i) that the local authority has actually incurred those costs; that the costs were incurred in obtaining the liability order; and that it was reasonable for the local authority to incur them. The court observed

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that it is a well-established public law principle that where a public authority has to make a decision, it must know (or be told) enough to ensure that nothing that is necessary, because it is legally relevant, for it to know, is left out of account. It also referred to guidance issued by the Department for Communities and Local Government in June 2013, “Guidance to local councils on good practice in the collection of Council Tax arrears”, which said “Local Authorities are reminded that they are only permitted to charge reasonable costs for the court summons and liability order. In the interests of transparency Local Authorities should be able to provide a breakdown, on request, showing how these costs are calculated. While it is likely that authorities will have discussed costs with the Clerk to Justices it should be recognised that the Court may wish to be satisfied that the amount claimed by way of costs in any individual case is no more than that reasonably incurred by the authority”. The application for judicial review succeeded. The court declared that the order was unlawful because: (1) The Magistrates did not have sufficient relevant information before them to reach a proper judicial determination of whether the costs claimed represented costs reasonably incurred by the Council in obtaining the liability order. (2) The Magistrates erred in law by failing to make further inquiries into how the £125 was computed and what elements it comprised. (3) The claimant was denied a fair opportunity to challenge the lawfulness of the order before it was made, by reason of the failure to answer his requests for the provision of information as to how the sum of £125 was arrived at.

Legislation

This is a small selection of recent legislation with a “governance” flavour.

Local Audit and Accountability Act 2014

See above.

Children and Families Act 2014

The Act takes forward a range of Government commitments which are intended to improve services for key groups of vulnerable children (children in the adoption and care systems, those affected by decisions of the family courts and those with special educational needs and disabilities) and to support families in balancing home and work life, particularly when children are very young.

The Act contains provisions on a range of policies which span the responsibilities of the Department for Education, the Ministry of Justice, the Department for Business, Innovation and Skills, the Department for Work and Pensions and the Department of Health. It contains measures intended to remove barriers to adoption; reform the family justice system and the special educational needs system and ensure that services place children and young people at the centre of decision making and support. It contains measures which relate to the welfare of children, including areas such as: child performance; protecting children and young people from tobacco and nicotine addiction; young carers and parent carers; “staying put” arrangements; supporting pupils at school with medical conditions; reform of children’s homes; clarifying the Secretary of State’s intervention powers; and free school lunches. The Act contains measures which support wider changes to childcare; introduces a new system of shared parental leave following childbirth or adoption; and extends to all employees the right to request flexible working. Through its reforms to the functions and role of the Children’s Commissioner, the Act is intended to ensure that children in England have a strong advocate for their rights. 92

Anti-social Behaviour, Crime and Policing Act 2014

The Act introduces powers to tackle anti-social behaviour to provideer protection for victims and communities.

The community trigger and community remedy empower victims and communities, giving them a say in how agencies respond to complaints of anti-social behaviour and in out-of-court sanctions for offenders.

The Act also: . tackles irresponsible dog ownership and the use of illegal firearms by gangs and organised criminal groups . strengthens the protection afforded to the victims of forced marriage and those at risk of sexual harm . amends the port and border security powers in Schedule 7 to the Terrorism Act 2000, to ensure that they strike the right balance between the need to protect public safety and the protection of individual freedoms . amends the Extradition Act 2003 to strengthen public confidence in, and the operational effectiveness of, our extradition arrangements

Care Act 2014

Part 1 of the Act is intended to give effect to the policies requiring primary legislation that were set out in the White Paper Caring for our future: reforming care and support to implement the changes put forward by the Commission on the Funding of Care and Support, chaired by Andrew Dilnot, and to meet the recommendations of the Law Commission in its report on Adult Social Care to consolidate and modernise existing care and support law.

Part 2 of the Act also gives effect to elements of the Government’s response to the Mid Staffordshire NHS Foundation Trust Public Inquiry that require primary legislation.

Part 3 of the Act makes changes to the Trust special administration regime. It also takes forward the necessary legislative measures for the proposals outlined in Liberating the NHS: Developing the Healthcare workforce - From Design to Delivery, the establishment of Health Education England as a non-departmental public body; and those in relation to health research that were set out in the Government’s Plan for Growth, the establishment of the Health Research Authority as a non- departmental public body.

Part 4 of the Act establishes a fund for the integration of care and support with health services, to be known as the Better Care Fund and makes provision for additional safeguards around the general dissemination of health and care information.

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Consumer Rights Act 2015

An Act to amend the law relating to the rights of consumers and protection of their interests, to make provision about investigatory powers for enforcing the regulation of traders, to make provision about private actions in competition law, and for connected purposes.

The Act brings together consumer rights from the Supply of Goods (Implied Terms) Act 1973, Sale of Goods Act 1979, Supply of Goods and Services Act 1982, Sale and Supply of Goods Act 1994, Sale and Supply of Goods to Consumers Regulations 2002, Unfair Contract Terms Act 1977, Unfair Terms in Consumer Contracts Regulations 1999, Unfair Terms in Consumer Contracts (Amendment) Regulations 2001, Competition Act 1998, Enterprise Act 2002. The Act is in three parts and also contains ten schedules. Part 1 deals with consumer contracts for goods, digital content and services. Part 2 deals with unfair terms. Part 3 deals with miscellaneous and general, including: investigatory powers; amendment of the Weights and Measures (Packaged Goods) Regulations 2006; enhanced consumer measures and other enforcement under the Enterprise Act 2002; clarification of the maximum penalties that the regulator of premium rate services can impose on non-compliant and rogue operators; private actions in competition law; a duty on letting agents to publicise fees and other information; requirements relating to resale of tickets for recreational, sporting and cultural events.

Criminal Justice and Courts Act 2015

An Act to make provision about how offenders are dealt with before and after conviction; to create offences involving ill-treatment or wilful neglect by a person providing health care or social care; to create an offence of the corrupt or other improper exercise of police powers and privileges; to make provision about offences committed by disqualified drivers; to create an offence of disclosing private sexual photographs or films with intent to cause distress; to amend the offence of meeting a child following sexual grooming; to amend the offence of possession of extreme pornographic images; to make provision about the proceedings and powers of courts and tribunals; to make provision about judicial review; and for connected purposes.

The Act is in five parts and also contains 16 schedules. Part 1 deals with criminal justice. Part 2 deals with detention of young offenders, giving cautions and conditional cautions to youths, and referral orders. Part 3 deals with courts and tribunals. Part 4 deals with judicial review proceedings. Part 5 contains a power to make provision consequential on or supplementary or incidental to the other provisions of the Act.

See earlier for details of the reforms which the Act has made to the procedure for judicial review.

Deregulation Act 2015

An Act to make provision for the reduction of burdens resulting from legislation for businesses or other organisations or for individuals; make provision for the repeal of legislation which no longer has practical use; make provision about the exercise of regulatory functions; and for connected purposes.

The Act repeals the duty for local authorities in England to prepare a sustainable community strategy; the duties relating to local area agreements and multi-area agreements; section 3A of the Local Government Act 1999 (which makes provision for best value authorities to involve local

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representatives in the exercise of their functions); and the power to establish joint waste authorities in England.

Infrastructure Act 2015

The Act includes provision for: Strategic highways companies: The creation and appointment of arms- length companies owned by the Secretary of State and to give them the roles of highways authority in specified areas. The Secretary of State will have power to set or vary a road investment strategy for a strategic highways company, specifying its objectives and financial resources. The Secretary of State will also have power to give directions and guidance to strategic highways companies. The Office of Rail Regulation has responsibility for monitoring how strategic highways companies exercise their functions. It may require a strategic highways company to pay a fine to the Secretary of State for failure to comply with a road investment strategy or a direction from the Secretary of State and to have regard to guidance. The Act gives responsibilities to the Passengers’ Council to protect and promote the interests of users of highways for which a strategic highways company is the highways authority. Species control: Amendment of the Wildlife and Countryside Act 1981 to provide for species control agreements between environmental authorities and owners of premises for the eradication or control of invasive non-native species in England and Wales. There is also provision for environmental authorities to make species control orders in specified circumstances. Amendments to planning legislation. Land charges: Amendment of various legislation to provide for transfer of responsibility for local land charges to the Land Registry. Carbon abatement: Amendment of the Building Act 1984 to make provision for building regulations to impose requirements relating to carbon abatement measures. Renewable energy: Power for the Secretary of State to make regulations to allow individuals and groups to buy stakes in renewable energy facilities located in or adjacent to their communities. Petroleum: Amendment of the Petroleum Act 1998 to make provision for maximising the economic recovery of UK petroleum through development, construction, deployment and use of equipment in the petroleum industry, and collaboration among holders of petroleum licences, operators under petroleum licences, owners of upstream petroleum infrastructure and persons planning and carrying out the commissioning of upstream petroleum infrastructure. Energy industry licences: Power for the Secretary of State to make regulations to impose a levy on holders of certain energy industry licences. Deep level land: A right for persons to use deep-level land in any way for the purposes of exploiting petroleum or deep geothermal energy. Renewable heat incentives: Amendment of the Energy Act 2008 to make provision for regulations to be made relating to renewable heat incentives. Electrical connections: Amendment of the Electricity Act 1989 to make provision for reimbursement of persons who have met the expenses of making electrical connections. Public Works Loan Commissioners: Amendment of the Public Bodies Act 2011 to make provision for a Minister to have the power to abolish the Public Works Loan Commissioners.

Recall of MPs Act 2015

The Act provides for the opening of a recall petition to be triggered if any of the following three conditions apply: A Member of Parliament (MP) is convicted of an offence and receives a custodial sentence. The House of Commons orders the suspension of an MP for a period of at least 10 sitting days or, if the period is not expressed as a specified number of sitting days, for a period of at least 14 days. An MP is convicted under section 10 of the Parliamentary Standards Act 2009 (offence of providing false or misleading information for allowances claims), regardless of the sentence imposed. The Speaker would give notice to the petition officer for the MP’s constituency and the petition officer would open a petition. The petition would then be open for signing for six weeks. If at the end of that

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period at least 10 per cent of registered parliamentary electors in that constituency had signed the petition, the seat would be declared vacant and a by-election would follow. The Member who was recalled could stand in the by-election.

The Act also introduces requirements relating to the conduct of the recall petition, including campaign spending limits for those supporting and opposing recalling the Member.

Small Business, Enterprise and Employment Act 2015

An Act to make provision about improved access to finance for businesses and individuals; to make provision about regulatory provisions relating to business and certain voluntary and community bodies; to make provision about the exercise of procurement functions by certain public authorities; to make provision for the creation of a Pubs Code and Adjudicator for the regulation of dealings by pub- owning businesses with their tied pub tenants; to make provision about the regulation of the provision of childcare; to make provision about information relating to the evaluation of education; to make provision about the regulation of companies; to make provision about company filing requirements; to make provision about the disqualification from appointments relating to companies; to make provision about insolvency; to make provision about the law relating to employment; and for connected purposes.

Part 1 of the Act deals with access to finance. Part 2 deals with regulatory reform. Part 3 deals with public sector procurement. Part 4 deals with the pubs code and adjudicator. Part 5 deals with childcare and schools. Part 6 deals with education evaluation. Part 7 deals with transparency of companies. Part 8 deals with company filing requirements. Part 9 deals with directors’ disqualification. Part 10 deals with insolvency. Part 11 deals with employment.

The procurement sections enable regulations to be made imposing . duties to exercise functions relating to procurement in an efficient and timely manner; . duties relating to the process by which contracts are entered into (including timescales and the extent and manner of engagement with potential parties to a contract); . duties to make available without charge … information or documents … any process required to be completed in order to bid for a contract . duties relating to the acceptance of invoices by electronic means . duties to publish reports about compliance with the regulations.

The Government published a policy statement on the potential use of the power to make regulations. It also published draft illustrative regulations relating to two policy areas: pre-procurement engagement with suppliers and having due regard to Lean sourcing principles.

The employment sections include provisions relating to public sector exit payments (see above). The Government has published draft regulations, The Repayment of Public Sector Exit Payments Regulations.

Modern Slavery Act 2015

An Act to make provision about slavery, servitude and forced or compulsory labour and about human trafficking, including provision for the protection of victims; to make provision for an Independent Anti-slavery Commissioner; and for connected purposes.

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The Act is in seven parts. Part 1 deals with offences of slavery and human trafficking. Part 2 provides for new civil prevention orders. Part 3 deals with maritime enforcement. Part 4 provides for the establishment of an Independent Anti-slavery Commissioner. Part 5 deals with protection of victims. Part 6 deals with transparency in supply chains. Part 7 contains miscellaneous and general provisions.

The Act imposes a duty on public authorities to comply with any requests for co-operation made to them by the Anti-slavery Commissioner.

The Act gives the Secretary of State power to make regulations providing for public authorities to determine whether there are reasonable grounds to believe that a person may be a victim of slavery or human trafficking or a person is a victim of slavery or human trafficking.

The Act imposes a duty on public authorities to notify the Secretary of State if they have reasonable grounds to believe that a person may be a victim of slavery or human trafficking.

Local Government (Religious etc. Observances) Act 2015

An Act to make provision about the inclusion at local authority meetings of observances that are, and about powers of local authorities in relation to events that to any extent are, religious or related to a religious or philosophical belief.

This Act was developed as a result of the judgment in the case of R (on the application of National Secular Society and another) v Bideford Town Council [2012] EWHC 175 (Admin), which found that there was no statutory power for a local authority to include the saying of prayers as part of the formal meeting of a council. The Government brought into force section 1 of the Localism Act 2011, which gave a general power of competence to principal councils in England and some parish councils but this does not apply to smaller parish councils nor to single purpose authorities.

The Local Government (Religious etc, Observances) Act 2015 inserts new sections into the Local Government Act 1972 to give a range of authorities in England the power to include prayers as an item of business and to support, facilitate or be represented at religious or similar events.

Local Government (Review of Decisions) Act 2015

An Act to make provision about the procedure for conducting investigations under Part 3 of the Local Government Act 1974; and to make provision for cases where an authority to which that Part applies takes a decision that affects the holding of an event for a reason relating to health or safety.

The Act inserts new provisions into the Local Government Act 1974, requiring local authorities to provide an event organiser or person applying for a decision with written notification of a decision when a local authority stops an event or imposes conditions or restrictions upon an event on the grounds of health and safety. The applicant or event organiser may apply for a review of that decision.

The Act also amends the Local Government Act 1974 to make provision for the Local Government Ombudsman to identify categories of cases that are to be investigated faster than other cases.

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Self-build and Custom Housebuilding Act 2015

An Act to place a duty on certain public authorities to keep a register of individuals and associations of individuals who wish to acquire serviced plots of land to bring forward self-build and custom housebuilding projects and to place a duty on certain public authorities to have regard to those registers in carrying out planning and other functions.

The following are Bills relevant to local government that are currently going through Parliament:

Charities (Protection and Social Investment) Bill

A Bill to amend the Charities Act 2011 to provide stronger protection for charities in England and Wales from individuals who are unfit to be charity trustees; give the Charity Commission new or strengthened powers to tackle abuse of charity more effectively and efficiently and to give charities a new power to make social investments.

Childcare Bill

A Bill to make provision about free childcare for young children of working parents and about the publication of information about childcare and related matters by local authorities in England.

Cities and Local Government Devolution Bill

A Bill to make provision for the election of mayors for the areas of, and for conferring additional functions on, combined authorities established under Part 6 of the Local Democracy, Economic Development and Construction Act 2009; to make other provision in relation to bodies established under Part 6 of the Local Democracy, Economic Development and Construction Act 2009; and to make provision about local authority governance.

Council Tax Valuation Bands Bill

A Bill to make provision for the introduction of a new set of council tax valuation bands to apply to all dwellings bought or sold after 1 April 2000.

Education and Adoption Bill

A Bill to make provision about schools in England that are causing concern, including provision about their conversion into academies and about intervention powers; and to make provision about joint arrangements for carrying out local authority adoption functions in England.

Planning (Subterranean Development) Bill

A Bill to make provision for the presumption against the granting of planning permission in respect of subterranean development where certain conditions apply.

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Procurement

The Public Contracts Regulations 2015 (“the Regulations”) were made in February 2015, to implement the requirements of European directives that were adopted in 2014. Many of the provisions came into force on 26 February 2015. Some provisions will come into force on dates specified in the Regulations.

The Regulations apply to contracting authorities. These are defined in the Regulations as the State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or bodies.

Part 4 of the Regulations introduced rules that apply in the UK at thresholds below the threshold for the general application of the Regulations. In respect of contracts of £10,000 or more being awarded by central government bodies, if they decide to advertise them, they must advertise on the Government’s Contracts Finder website. Local authorities and housing associations must do so for contracts of £25,000 or more. Schools and academies and some NHS procurements are exempt from this requirement. The advertisement must specify the deadline for responses and how to respond, and any other conditions for participation. Pre-qualification questionnaire must not be used for such contracts and any questions about suitability to bid must be relevant to the subject matter of the contract and proportionate.

Regulation 113 introduced a requirement for public authorities to include in their contracts an obligation to pay contractors within 30 days of a valid and undisputed invoice. If they fail to do so, the terms will become implied terms. Invoices must be considered and verified by the contracting authority in a timely fashion and undue delay is not to be regarded as justification for delay in payment.

Other provisions in the Regulations include:

 Reductions in time limits for requests to participate and return of tenders.

 Clarification that social and environmental benefits can be considered during evaluation.

 Removal of the distinction between Part A and Part B services and the introduction of a new “light touch” regime for contracts in specified sectors that exceed €750,000.

 Power to reserve certain types of contract to social enterprises and mutuals.

 New procurement procedures: the competitive procedure with negotiation and the innovation partnership procedure.

 Clarification of when a contracting authority may vary a contract without having to carry out a new procurement.

Geldards LLP and Weightmans LLP July 2015

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