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:

• The House of Lords Constitution Committee has launched a new inquiry into the legislative process and requested evidence to inform its work.

Children’s services:

• The Family Procedure (Amendment No 2) Rules 2016 have been made and will come into force on 3 October 2016. They insert a new rule for applications to set to aside a financial remedy order where no error of the court is alleged and remove the automatic party status of a child in declaration of parentage applications.
• The High Court has:
  • decided to defer a decision on whether a cranioplasty should be performed on a child who was in foster care and subject to care proceedings, until the child was settled in a long-term placement (Re E (A Child: Medical Treatment));
  • reiterated that the practice guidance about the duration of without notice (ex-parte) orders issued on 13 October 2015 by the President of the Family Division, must be adhered to and is binding on the lower courts (Re W (Minors)); and
  • concluded that secure accommodation orders cannot be made to place a child in a secure unit in Scotland, and considered that there are serious lacunae in the law that need urgent attention (X (A Child) and Y (A Child)).
• The Family Court has criticised the lack of a mechanism to transfer care proceedings from England to Scotland, where the child is habitually resident in Scotland, but the Scottish authorities will not bring care proceedings because the child is physically in England (An English local authority v X and others).

Civil litigation:

• The High Court has:
  • made no order for costs in a judicial review application that was compromised by both parties (Swale Borough Council v S P Maughan and others); and
  • provided helpful guidance on the approach when considering applications for permission to appoint a McKenzie friend (Ravenscroft v Canal & River Trust).
• The Lord Chancellor, Lord Chief Justice and the Senior President of Tribunals have published a joint statement on their shared vision for the future of Her Majesty’s Courts and Tribunals Service. At the same time, the Ministry of Justice, the body responsible for developing and implementing the policy proposals, has published a consultation, outlining what it is doing to achieve reform, and inviting views on certain specified measures.

Education:

• The Department for Education has updated its advice on dealing with strike action in schools to take account of legal and other related developments since 2013.

Employment and pensions:

• The Welsh government has published a consultation seeking views on the use of agency staff during strike action in Welsh public services.
• The EAT has considered whether a claim of constructive dismissal was validly accepted by an employment tribunal in circumstances where the employee resigned after Acas had issued a certificate at the conclusion of the early conciliation process in relation to the employee’s concerns about the employer’s treatment of her (Compass Group UK & Ireland Ltd v Morgan).
• The Pensions Ombudsman has held that there was no breach of the duty described in Scally by the employer of a member who opted to stop contributions to the Scottish Teachers’ Superannuation Scheme after 40 years of pensionable service, with the result that a much reduced death benefit was payable on her death less than a year later (Determination in a complaint by Mr N).

Environment:

• The Welsh Government has published a consultation on streamlining local air quality and noise management in Wales.
• The Environment Agency has published consultation responses and final decisions for a consultation on its fire prevention plan guidance for waste sites.

FOI and data protection:

• The FTT(IR), confirming the Information Commissioner’s decision, has held that details of defectors to and from the Soviet Union were exempt from disclosure under section 40(2) of the Freedom of Information Act 2000 (Lownie v Information Commissioner).
• The Information Commissioner’s Office has launched a survey on information governance frameworks in local councils.

Local government law:

• The West Midlands Combined Authority (Election of Mayor) Order 2016 has been made. The Order creates the position of mayor for the area of the West Midlands Combined Authority.
• The High Court has held that the decision taken by a council to establish five community libraries was lawful (R (Tilley) v Vale of Glamorgan Council).
• The Committee on Standards in Public Life has published a report entitled Striking the Balance Upholding the Seven Principles of Public Life in Regulation. The report reviews how regulatory bodies in the UK (including the Local Government Ombudsman) uphold the Seven Principles of Public Life.

Property and planning:

• The Neighbourhood Planning (Referendums) (Amendment) Regulations 2016 have been made and will come into force in England on 1 October 2016.
• The Neighbourhood Planning (General) and Development Management Procedure (Amendment) Regulations 2016 have been made and will come into force on 1 October 2016. These Regulations deal with neighbourhood areas and forums and neighbourhood development orders and plans.
• The Welsh government has introduced the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Bill 2016-17 into the Welsh National Assembly.
• The Upper Tribunal (Lands Chamber) has applied a residual land value process to calculate the compensation due to a claimant under a compulsory purchase order for land forming part of a wider regeneration scheme (Michael v Salford City Council).
• The DCLG has published:
  • their response to the consultation on further reform of the compulsory purchase system; and
  • a consultation on improving the use of planning conditions.

Public procurement and state aid:

• The ECJ has handed down a preliminary ruling in the two joined cases concerning restrictions on the right to challenge the actions of a contracting authority (SC Star Storage SA v Institutul Naţional de Cercetare-Dezvoltare în Informatică (ICI) and SC Max Boegl România SRL and others v RA Aeroportul Oradea and others).
• The General Court has:
  • dismissed an appeal against a decision of the European Commission not to disclose certain documents relating to a procurement contract for safety checks to be carried out at various buildings of EU institutions in Luxembourg (Secolux v Commission); and
  • dismissed an appeal against a European Commission procurement process for development and support of information systems (Evropaïki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v European Commission).
• The Advocate General has delivered an opinion recommending that the ECJ conclude that national legislation requiring a delay in bringing a challenge to a preparatory act until a later stage of the procurement process does not infringe EU law, subject to certain conditions (Marina del Mediterraneo, SL and others v Consejeria de Obras Publicas y Vivienda de la Junta de Andalucia and others (AG’s Opinion)).
• The European Commission has published a decision finding that the Utilities Directive shall not apply to contracts awarded by contracting entities and intended to enable the retail supply of electricity and gas to certain customers in Germany.
• The Crown Commercial Service has published updated guidance on paying undisputed invoices in 30 days under the Public Contracts Regulations 2015.
• A European Commission notice on state aid recovery interest rates and reference/discount rates for all 28 EU member states applicable from 1 October 2016 has been published in the Official Journal.

Regulation and enforcement:

• The Environment Agency has announced that a composting site operator has been fined £50,000 after breaching its environmental permit.
• Environmental Health News has reported that a care home operator has been fined £1.5 million and one of its employees given a suspended custodial sentence after serious breaches of the Health and Safety at Work etc. Act 1974 at a care home.
• The Environment Agency has announced that a waste disposal trader has been sentenced to 30 weeks’ imprisonment following a conviction for waste offences.
• HM Treasury has launched a consultation on the transposition of the Fourth Money Laundering Directive into national law.