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 Supreme Court has held that the Lord Chancellor’s September 2013 proposal to introduce a residence test for civil legal aid by amending Schedule 1 to the Legal Aid, Sentencing and Punishment Offenders Act 2012 was unlawful (R (Public Law Project) v Lord Chancellor).
• The High Court has held a short hearing relating to the procedure for the UK’s withdrawal from the EU, at which it was confirmed that Article 50 is unlikely to be triggered before the end of 2016.
• The Law Commission has launched the 13th Programme of Law Reform. The programme invites a wide consultation from stakeholders about possible changes to the substantive law of England and Wales.
• The Cabinet Office announced the appointment of a number of ministers, and the creation of a new Department for Business, Energy and Industrial Strategy.

Children’s services:

• The Court of Appeal has confirmed that it is permissible to use the statutory schemes for financial support to asylum or failed-asylum seekers as a cross-check for financial support given under section 17 of the Children Act 1989 (R (C) v London Borough of Southwark).
• The High Court has shared an expert’s report identifying the different reasons and factors involved in the radicalisation of young people (London Borough of Tower Hamlets v B).

Civil litigation:

• The Court of Appeal has considered, among other things, whether a judge had been right to exclude one claimant, against his will, from a trial while another claimant gave his evidence (Da Costa and another v Sargaco and another).
• The High Court has:
  • allowed an appeal from a decision refusing an application under CPR 39.3(3) to set aside judgment made in the absence of the defendants (Anne Alexander Hotels v Blake-Coulter and others); and
  • dismissed a defendant’s application challenging the jurisdiction of the court on the basis that the claim form and particulars of claim had not been served in time. In doing so, it issued a strong warning against parties taking technical points on service, in circumstances where they have not been prejudiced and it is the challenge itself which delays proceedings (DB UK Bank Ltd (t/a DB Mortgages) v Sinclair Solicitors Ltd).
• Liz Truss has been appointed as the new Lord Chancellor and Secretary of State for Justice following Theresa May’s appointment as Prime Minister.

Education:

• The House of Commons Library has published a briefing paper providing an overview of the rights of parents to receive information about their child’s education, and participate in decisions about their child’s education.

Employment and pensions:

• The Immigration Act 2016 (Commencement No 1) Regulations 2016 brought into force from 13 July 2016, section 34 of the Immigration Act 2016, which contains a new illegal working offence. The government has also published guidance on the new offence.
• The Court of Appeal has dismissed an appeal by the Ministry of Justice against the EAT’s decision that part-time property judges were treated less favourably than their full-time tax judge comparators under the Part-Time Workers Regulations 2000 (Ministry of Justice v Burton and another).
• Advocate General Opinions have been issued on:
  • the scope of the Temporary Agency Workers Directive in relation to the supply of bank nurses (Betriebsrat de Ruhrlandklinik gGmbH v Ruhrlandklinik gGmbH (AG’s Opinion)); and
  • whether a French employer’s ban on the wearing of Muslim headscarves by staff amounted to direct and/or indirect discrimination under the Equal Treatment Framework Directive (Bougnaoui and another v Micropole SA (AG’s Opinion)).
• The EAT has held that an employee was automatically unfairly dismissed for making protected disclosures even though the person who dismissed her was unaware of those disclosures (Royal Mail Group Limited v Jhuti).
• The government has published its response to the House of Lords Select Committee Report on the Equality Act 2010 and its impact on disabled people.
• The Pensions Ombudsman has held that a Local Government Pension Scheme employing authority which refused a former employee’s application for ill-health early retirement benefits on grounds of a hypothetical cost did not reach its decision in a proper manner and risked overriding members’ expectations and breaching its implied employer duty of good faith (Determination in a complaint by Mrs R).

Environment:

• Two sets of regulations introducing a new energy efficiency formula for the recovery of energy from waste will come into force on 31 July 2016 and 3 August 2016.
• The Environment Agency has published online guidance on pollution prevention for businesses in England.
• Commission Implementing Regulation (EU) 2016/1141 has been published in the Official Journal. It sets out the first list of invasive alien species compiled by the Commission as required by the EU Invasive Alien Species Regulation 2014.

FOI and data protection:

• The High Court has ruled that a university was not in breach of contract and had acted lawfully under section 29 of the Data Protection Act 1998 when it provided a copy of a suspected student’s university registration form to the police to assist with their enquiries into sexual assault against students and a complaint of rape, prior to receiving a written request from them in contravention of the university’s data protection policy (Bangura v Loughborough University).
• The Advocate General has advised that bulk data collection is only lawful in cases of serious crime.
• The Information Commissioner’s Office has published its response to the European Commission’s consultation on the Privacy and Electronic Communications Directive.
• The UNECE Aarhus Convention Compliance Committee has published draft findings and recommendations concluding that the EU has failed to implement Article 9(3) of the Aarhus Convention by failing to fully implement the access to justice requirements.
• Ms Elizabeth Denham has started her five year term as the UK’s new Information Commissioner.

Housing:

• The Court of Appeal has:
  • dismissed an appeal in which the appellant claimed that his occupation of temporary accommodation was capable of being settled for the purposes of demonstrating that he was no longer intentionally homeless (Huda v Redbridge LBC); and
  • upheld the decisions of district judges in two cases where suspended possession orders were made in proceedings brought by the respective housing associations against two tenants whose properties were being used for the cultivation of cannabis (City West Housing Trust v Lindsey Massey and Vincent Roberts v Manchester and District Housing Association).

Local government:

• The High Court has dismissed a judicial review of a Fire and Emergency Planning Authority’s decision to retain responsibility for the consideration and potential prosecution of a council for offences under the Regulatory Reform (Fire Safety) Order 2005, as there was no suggestion of bias (R v London Fire and Emergency Planning Authority).

Property and planning:

• The Welsh government has published a draft version of the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Bill 2016-17.
• The draft Self-build and Custom Housebuilding (Time for Compliance and Fees) Regulations 2016 have been published and laid before Parliament.
• The Supreme Court has considered whether an intermediate landlord was in breach of the statutory covenant to keep the structure and exterior of a dwelling-house in repair under section 11 of the Landlord and Tenant Act 1985 (Edwards v Kumarasamy).
• The Welsh Government has launched consultations on:
  • proposals for secondary legislation and draft guidance to support the Historic Environment (Wales) Act 2016;
  • the application of higher rates of land transaction tax on the purchase of additional dwellings; and
  • draft Technical Advice Note 24: The Historic Environment.
• The Law Commission has issued a consultation on what to include in its 13th Programme of law reform in England and Wales.

Public procurement:

• The ECJ has ruled:
  • that while an authority is not required to bring to the attention of potential tenderers the method of evaluation, that method may not have the effect of altering the award criteria and their weighting (TNS Dimarso NV v Vlaams Gewest);
  • that it is unlawful to require a contractor to directly perform a specified percentage of works (Wroclaw – Miasto na prawach powiatu v Minister Infrastruktury i Rozwoju); and
  • against automatic extensions of authorisations or concessions of state-owned maritime and lakeside property for tourist and leisure-oriented business activities, without any selection procedure for potential candidates (Joined Cases Promoimpresa srl v Consorzio dei comuni della Sponda Bresciana del Lago di Garda e del Lago di Idro and Regione Lombardia and Others v Comune di Loiri Porto San Paolo, Provincia di Olbia Tempio).
• The Crown Commercial Service has published Procurement Policy Note 07/16: Legal requirement to publish on Contracts Finder. The PPN reminds contracting authorities to ensure that procurement opportunities and contract awards above certain low thresholds are published on Contracts Finder.

Regulation and enforcement:

• The Modern Slavery Act 2015 (Duty to Notify) (Amendment) Regulations 2016 have been published and will come into force on 10 August 2016.
• The Environment Agency has announced that a man has been fined £1,300 at Teesside Magistrates’ Court for failing to comply with a notice to remove waste from land under section 59 of the Environmental Protection Act 1990.