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.

Adult social services:

• The Court of Protection has held that the clinically assisted nutrition and hydration of an individual in a minimally conscious state should be withdrawn (Briggs v Briggs and others).
• The House of Commons Library has published a briefing paper discussing social care funding and the care home market in England.

Central government:

• The Cabinet Office has published a memorandum to the Public Administration and Constitutional Affairs Committee, which provided an assessment of the Public Bodies Act 2011 for the first five years of its operation.
• The Scottish government has published proposals by which it could retain its position in the European Single Market, including as an independent country, and for the powers of the Scottish Parliament to be “fundamentally revisited”.
• The House of Commons and House of Lords’ Joint Committee on Human Rights has published a report on the human rights implications of Brexit that summarises its preliminary conclusions on the “profound” effects Brexit will have on the UK’s legal framework of human rights.
• The Bar Council’s Brexit working group has published “The Brexit Papers” to help the government assess the most pressing legal concerns arising from the UK’s decision to withdraw from the EU.
• The House of Lords Constitution Committee, as part of its inquiry into the legislative process, has called for evidence on the delegation of powers.
• The House of Lords Library has published a briefing paper on the machinery of government changes introduced by the government and Parliament in the wake of the vote to leave the EU resulting from the UK’s referendum.

Children’s services:

• The High Court has:
  • rejected arguments made by the Secretary of State for the Home Department submitted in an attempt to discharge an order for disclosure. The court considered that the application was an attempt to head-off the need to apply for public interest immunity (PII), and within the SSHD’s arguments, issued guidance on the process for determining the need for a PII application (Re C (A Child)); and
  • found that a German citizen, who had lived in the UK for ten years and then returned to live in Germany, had acquired and retained a domicile of choice in the UK (AB and another v GH).

Civil litigation:

• The High Court has held that, for the purposes of legal advice privilege, the meaning of client is narrowly defined, following Three Rivers District Council and others v Governor and Company of the Bank of England. The judgment also considers a claim that certain documents were privileged on the basis that they were lawyers’ working papers, and whether English law was the appropriate law for determining privilege where the litigation had connections with the US (The RBS Rights Issue Litigation, Re).
• The County Court has held that the payment of the wrong fee when a claim form was issued before the expiry of the limitation period had no effect on either the validity of the claim form or when time stopped running for the purposes of the Limitation Act 1980 (Wells v Wood and another).
• HM Courts & Tribunals Service has issued a temporary Form N325A to be used for a request for warrant for possession of land following a suspended order of possession. For reissue of a warrant, an updated Form N445 has been produced.
• The Chancellor of the High Court has announced that the use of the electronic working system, CE-File, will be mandatory in all Rolls Building courts from 25 April 2017.

Commercial:

• The High Court has considered the general principles relevant for ascertaining mental capacity to enter into a transaction, and examined the test set out in Chitty on Contracts, before identifying five relevant general principles (Fehily v Atkinson).

Education:

• The Department for Education has published a second stage consultation on proposals to introduce a national funding formula for schools, together with an analysis of responses to its first stage consultation and its intended next steps in light of those.
• The House of Commons Library has published a briefing paper on sex and relationship education in schools in England.

Employment and pensions:

• The EAT has upheld an employment tribunal’s decision that it was not direct sexual orientation or marriage discrimination, or sexual orientation harassment, for a Bishop to refuse to grant the required qualification to a priest to take up a position as hospital chaplain (Reverend Canon Pemberton v Former Acting Bishop of Southwell and Nottingham).
• The Government Equalities Office has published its response to the consultation on the draft gender pay gap reporting regulations, which are expected to come into force in April 2017.
• The civil courts and employment tribunals will be closed over the Christmas and new year period.
• The Presidents of the Employment tribunals in England and Wales and Scotland have issued updated Practice Directions on the presentation of claims.

Environment:

• The Environmental Permitting (England and Wales) Regulations 2016 have been made and will come into force on 1 January 2017.
• The High Court has decided that a local authority could be a responsible person under the contaminated land regime in Part 2A of the Environmental Protection Act 1990 in respect of contamination arising as a result of its predecessor’s activities (Price and another v Powys County Council).
• The Department for Communities and Local Government has published a consultation on implementing Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment.
• The Department for Food, Environment and Rural Affairs has:
  • published a consultation on implementing Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment; and
  • responded to its consultation on a consolidated version of the Producer Responsibility Obligations (Packaging Waste) Regulations 2007.

FOI and data protection:

• The Investigatory Powers Act 2016 (Commencement No 1 and Transitional Provisions) Regulations 2016 have been made. The Regulations are the first commencement regulations made under the Investigatory Powers Act 2016. Among other things, they bring into force provisions of the Act relating to the retention of communications data on 30 December 2016.

Health:

• The Department of Health has published responses to:
  • the House of Commons Health Select Committee’s Report into the Impact of the Spending Review on Health and Social Care (First Report of Session 2016-17); and
  • the House of Commons Health Committee’s Report on Public Health post-2013 (Second Report of Session 2016-17).

Property and planning:

• The Court of Appeal has confirmed that residents of almshouses occupy as licensees and not as tenants with security of tenure (Watts v Stewart and others).
• The Department for Communities and Local Government has published responses to its consultations on:
  • improving the use of planning conditions; and
  • the implementation of neighbourhood planning provisions in the Neighbourhood Planning Bill 2016-17.
• The House of Commons Library has updated its briefing paper on planning reform proposals.
• The Welsh Government has taken the next steps in its plans for the National Development Framework by launching a call for evidence and projects.
• The National Infrastructure Commission has published an interim report on the Cambridge/Milton Keynes/Oxford corridor.

Public procurement:

• The ECJ has ruled that selection and award decisions relating to grave professional misconduct must be proportionate (Connexxion Taxi Services BV v Staat der Nederlanden and others).

Regulation and enforcement:

• The High Court has sentenced a nightclub owner to three months’ imprisonment, suspended for 18 months, for being in contempt of court for breaching an order prohibiting him from continuously playing loud music without a licence (Phonographic Performance Limited v Miller).
• The Ministry of Justice has published a response to the Justice Select Committee’s report on the Role of the Magistracy. The response was sympathetic to a number of the suggestions from the committee, but was not prepared to make any firm commitments.
• The National Audit Office has published its report into protecting consumers from scams, unfair trading and unsafe goods. The report highlights that although some progress has been made over the past five years, the UK consumer protection system as a whole has not demonstrated that it provides value for money in terms of the protection it offers to consumers.