Practical Law

Make sure that you have not missed a key development in your area of the law by reading our In brief review of the latest Practical Law Local Government email.

Central government:

• In his annual evidence session with the House of Lords constitution committee, the Lord Chancellor has confirmed that a consultation on a British Bill of Rights will be published in the new year.
• HM Treasury has announced that the Chancellor of the Exchequer will deliver the 2016 Budget on Wednesday 16 March 2016.

Children’s services:

• The Family Law Bar Association has published a response to the Lord Chancellor’s consultation on the destination of family appeals.

Civil litigation:

• Supreme Court Justice Lord Clarke has made a late change to a judgment in order to state his view on whether the allegedly offending clauses in a contract were primary obligations (Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis).
• The Court of Appeal has:
  • held that the government’s introduction of the “residence test” for legal aid was lawful, overturning a High Court judgment that found the introduction of the test to be discriminatory and unlawful (Public Law Project v The Lord Chancellor and another); and
  • dismissed an appeal against an order granting the respondent a retrospective time extension for filing a respondent’s notice and requiring the respondent to pay the appellant’s costs of the application on an indemnity basis (R (Idira) v Secretary of State for the Home Department).
• The High Court has:
  • considered issues including whether the court had jurisdiction to join non-parties into oral examination proceedings (Watson v Sadiq and another); and
  • ruled that service by an alternative method of an application for a property freezing order will be allowed if the applicant can show that there is a good reason to authorise service by a method or at a place not otherwise permitted by the CPR and that it is in the interests of justice to do so (NCA v Doherty).
• HM Courts and Tribunals Service has published guidance on the use of email in County Court proceedings.

Education:

• The DfE has published a Governance handbook, which replaces the Governor’s handbook that was published in January 2014.
• The House of Commons Library has published a briefing paper on the pupil premium policy as part of school funding.

Employment and pensions:

• The Committee on Standards in Public Life has published guidance on how public authorities and companies offering outsourced public services can maintain ethical standards.
• The Government Equalities Office has published guidance for employers on the recruitment and retention of transgender staff.
• The government has published the outcome of its consultation on the introduction of an apprenticeships levy for employers.
• The Insolvency Service has published the responses to a call for evidence on collective redundancy consultations in an insolvency situation.
• The Deputy Pensions Ombudsman has given an opinion that a decision by medical advisers that it was “premature” to decide if a pension scheme member with ten years of service remaining before normal pension age was permanently incapacitated was flawed (Determination in a complaint by Miss Ann Tracy).
• The Department for Communities and Local Government is consulting on proposals to introduce a prudential approach to securing a diversified investment strategy in the Local Government Pension Scheme.

Environment:

• The Waste Batteries and Accumulators (Amendment) Regulations 2015 have been made and will come into force in the UK on 1 January 2016.
• The Environment Agency has:
  •  prosecuted a company for breach of regulations 12 and 38 of the Environmental Permitting Regulations 2010;
  • published a number of updated waste standard rules under the Environmental Permitting regime;
  • published a consultation on revising its fire prevention plan guidance for waste operations;
  • taken action against a company for causing poisonous, noxious or polluting matter, namely trade effluent, to enter inland freshwaters without being authorised by an environmental permit; and
  • ceased to act as the Internal Drainage Board (IDB) in eight areas of Kent and Sussex . This may result in riparian owners becoming responsible for the maintenance and repair of the watercourses and drainage assets that were previously dealt with by the relevant IDB.
• Public Health England has published guidance on how it responds to the Environment Agency when it is consulted on Environmental Permitting applications.
• Defra has:
  • stated its intention to simplify and reduce the number of recycling schemes operated by different local authorities; and
  • published a consultation on proposed changes to guidance and reporting for the Local Air Quality Management framework in England.
• HM Revenue & Customs has published its response to its March 2015 consultation on reform of the Landfill Communities Fund.

FOI and data protection:

• The Court of Appeal, in deciding whether section 1 of the Data Retention and Investigatory Powers Act 2014 should be disapplied, has asked the European Court of Justice whether it intended to lay down mandatory requirements of EU law with which the national legislation of member states must comply when it ruled that the Data Retention Directive was invalid in the case of Digital Rights Ireland (Secretary of State for the Home Department v Davis MP and others).
• A company and director of that company have been prosecuted for failure to notify the ICO of offences under the Data Protection Act 1988.
• The House of Commons Library has published a briefing paper, Freedom of Information: changing the law?
• The European Data Protection Supervisor has published an opinion on the challenges of big data in the digital environment, which emphasises that data protection law must continue to protect existing rights and values even in a big data environment.

Health:

• The NHS Bodies and Local Authorities Partnership Arrangements (Amendment) Regulations 2015 have been laid before Parliament and will come into force on 1 April 2016.
• The Court of Protection has authorised the withdrawal of artificial nutrition from a minimally conscious person suffering from multiple sclerosis. This is the first example of the court deciding that it is in the best interests of a person lacking mental capacity (P) to authorise the removal of life-sustaining treatment in circumstances where P has some awareness (Re N).

Housing:

• The High Court has ruled that the government’s failure to exempt from the benefit cap those caring for severely disabled adult family members was unlawful, because it amounted to indirect discrimination against disabled people, which was not objectively justifiable (Hurley and others v Secretary of State for Work and Pensions).

Local government law:

• The Local Government (Wales) Bill has received Royal Assent and been enacted to become the Local Government (Wales) Act 2015.
• The High Court has held that:
  • a decision of a London borough to stop consulting on three refurbishment options for a 1960s housing estate and to focus on its option for regeneration with either partial or full demolition only was unlawful (Bokrosova v London Borough of Lambeth); and
  • the district judge hearing a street naming appeal under section 8 of the Public Health Act 1925 had applied the wrong test and that the matter should be remitted back to him for reconsideration (Basildon Borough Council v James).
• The Welsh Government has published a consultation inviting views on two statutory instruments.

Property and planning:

• The ECJ has handed down its judgment on the application of Article 101 of the TFEU to non-compete provisions in a commercial property lease (SIA Maxima Latvija v Konkurences padome).
• The DCLG has published a consultation package on a new Part R to the Building Regulations concerning high speed electronic communications networks, affecting the Building Regulations 2010.
• The NEC has published “early contractor involvement” clauses for use with the NEC3 Engineering and Construction Contract.

Public procurement:

• Commission Regulations amending the thresholds for the application of the Concessions Directive, the Public Sector Directive and the Utilities Directive have been published in the Official Journal.
• The ECJ has given a ruling on a reference from an Austrian court on the time limits for bringing an action under Directive 89/665 (MedEval Qualitäts Leistungs und Struktur-Evaluierung im Gesundheitswesen GmbH v Bundesvergabeamt).
• The General Court has dismissed an appeal by European Dynamics against a decision of the European Joint Undertaking for ITER and the Development of Fusion Energy (European Dynamics v European Join Undertaking for ITER and the Development of Fusion Energy).
• Advocate General Paolo Mengozzi has handed down his opinion on a reference for a preliminary ruling from the Danish Complaints Board for public procurement concerning the circumstances in which a contracting authority may accept a substitution of a tenderer in situations where one member of a tenderer group goes bankrupt prior to the award of the contract (MT Højgaard A/S, Züblin A/S v Banedanmark).
• The European Commission has published a decision finding that the Utilities Directive does not apply to contracts awarded by contracting entities and intended to enable the exploration for oil and natural gas to be carried out in Portugal.

Regulation and enforcement:

• A number of statutory instruments making changes to the Proceeds of Crime Act 2002 came into force on 30 November 2015.