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 Appeal has set aside an order made by the Court of Protection that required the appellant to provide the respondent local authority with a signed authority that would secure the release of a mentally incapacitated adult from a care home in Portugal and facilitate his return to the UK (Teresa Kirk v Devon County Council).

Central government:

• The Wales Bill has received Royal Assent to become the Wales Act 2017. The Act is an enabling Act, and the majority of the provisions set out the powers that are transferred to the National Assembly for Wales and the Welsh Ministers. It amends the Government of Wales Act 2006, by moving to a reserved powers model for Wales that is intended to provide a clearer separation of powers between matters that are devolved and those that are reserved to the UK Parliament.
• The Supreme Court has reversed a Court of Appeal decision and held that the High Court was right in its conclusion that the Police Service of Northern Ireland had misconstrued its powers under the Public Processions (Northern Ireland) Act 1998 to stop parades passing through a particular area in Belfast (DB v Chief Constable of Police Service of Northern Ireland).
• The Department for Exiting the European Union has published a White Paper setting out what the UK government seeks to achieve in negotiating Brexit, and the UK’s new partnership with the EU.
• The House of Commons Justice Committee has published a transcript of evidence from leading organisations and professional bodies, on the future of the legal sector post-Brexit.

Children’s services:

• The Court of Appeal has considered the consent requirement under section 20 of the Children Act 1989 and whether parents can object to accommodation if there is a police bail condition preventing unsupervised contact between the parents and the child (London Borough of Hackney v Williams).
• The High Court has confirmed that disputes over whether a child should be immunised must be decided on a case-by-case basis. The child’s welfare is paramount and the decision requires a balance of expert opinion against the parent’s decision (Re SL (Permission to vaccinate)).
• The Family Court has authorised a local authority, as the adoption agency, not to inform a relinquished child’s wider family of his existence and the adoption application. This was in line with the birth mother and the prospective adopters’ wishes (Re TJ (Relinquished Baby: Sibling Contact)).

Civil litigation:

• The Criminal Justice and Courts Act 2015 (Disapplication of Sections 88 and 89) Regulations 2017 have been made and will come into force on 28 February 2017. They disapply provisions introducing a new regime for costs capping orders in environmental judicial review proceedings under the Aarhus Convention. These are already subject to a separate costs capping regime under CPR 45.41 to 45.55.
• The Court of Appeal has:
  • held that section 35 of the Limitation Act 1980 (in particular sections 35(1) and (3)) does not allow a counterclaim which would otherwise have been out of time when the claimant’s claim was brought, to be advanced (Al-Rawas v Hassan Khan & Co (a firm) and another); and
  • considered “a short but important point of interpretation of the Civil Procedure Rules”, holding that the fixed costs regime in section IIIA of CPR 45 applies to the costs of an application (under section 52 of the County Courts Act 1984) for pre-action disclosure in the context of claims which started, but no longer continue, under the EL/PL Protocol (Sharp v Leeds City Council).

Commercial:

• The ECJ has ruled that where a court has assessed the fairness of a term in a consumer contract and the issue is res judicata, the court is not precluded from reviewing other terms of the same contract for fairness (Banco Primus SA v Jesús Gutiérrez García).

Employment and pensions:

• The draft National Minimum Wage (Amendment) Regulations 2017 were published on 1 February 2017 and propose to increase rates including the standard adult rate, apprenticeship rate and accommodation offset limit of the national minimum wage on 1 April 2017.
• The Court of Appeal has held that an employment judge was entitled to refuse a claimant’s application to amend his unfair dismissal claim to include a claim of whistleblowing (Kuznetsov v Royal Bank of Scotland).
• The House of Lords has voted through five sets of draft regulations defining “important public services” for the purposes of the Trade Union Act 2016, which will come into force on 1 March 2017.
• Acas and the Government Equalities Office have published draft non-statutory guidance on the Equality Act 2010 (Gender Pay Gap Information) Regulations, which are due to come into force on 6 April 2017.
• The Ministry of Justice has published its post-implementation review of employment tribunal fees.
• The Equality and Human Rights Commission has commented on its approach to enforcing the gender pay gap regulations which will come into force on 6 April 2017.

FOI and data protection:

• The Court of Appeal has ruled that a claim under the Data Protection Act 1998 could be run in parallel with a defamation claim. It also found that a claimant could plead in defamation for an imputation of disloyalty in certain circumstances (HH Prince Moulay Hicham Ben Abdallah Al Alaoui of Morocco v Elaph Publishing Ltd).
• The Law Commission has issued a consultation on ways to improve the law around the protection of official information. The consultation runs until 3 April 2017.
• The ICO has announced that a business owner has been fined £200 in the Magistrates’ Court for failing to register in-store CCTV cameras with the ICO, contrary to section 17 of the Data Protection Act.

Health:

• The Court of Appeal has upheld a decision of the High Court which had found that there was no reviewable error on the part of the coroner who had concluded that a mentally incapacitated woman who died while receiving treatment for pneumonia in the intensive care unit of a hospital was not in state detention for the purposes of section 7(2)(a) of the Coroners and Justice Act 2009 when she died (Ferreira v HM Senior Coroner for Inner South London and another).

Local government law:

• The Local Government Finance Bill 2016-17 has been introduced into the House of Commons. In order to provide further information on the measures in the Bill, the Department for Communities and Local Government has published policy factsheets.
• The Communities and Local Government committee has launched an inquiry into overview and scrutiny in local government.

Property and planning:

• The Housing and Planning Act 2016 (Commencement No 4 and Transitional Provisions) Regulations 2017  have been made and will bring into force various provisions of the Housing and Planning Act 2016.
• The High Court has:
  • held that a claim for rectification of the register by a property owner whose property was transferred by fraudulent transfer failed (Patel v Freddy’s Ltd and others); and
  • considered what the earliest date was on which a renewal lease could commence, where the landlord had exercised a break right to terminate the headlease (Fast Drinks Ltd v Cetyl International Group Inc).
• The government has published a White Paper on housing.
• The Department for Transport has published a draft Airports National Policy Statement for consultation, following the government’s October 2016 announcement that it supported the extension of Heathrow Airport by a third runway to the north-west.

Public procurement:

• The European Commission has adopted decision (EU) 2017/168 identifying 27 internet technical specifications for referencing in public procurement.

Regulation and enforcement:

• The Department for Transport has published draft regulations and guidance on the Bus Services Bill for consultation.
• The Court of Appeal has considered whether the High Court or the County Court had jurisdiction to hear an appeal relating to two experimental traffic regulation orders made under section 9 of the Road Traffic Regulation Act 1984 (Hamnett v Essex County Council).
• The Health and Safety Executive has announced that a landlord has been sentenced to 26 weeks’ imprisonment, suspended for 12 months, in the Magistrates’ Court, after failing to ensure gas appliances were checked for safety.
• The Local Government Ombudsman has published a report calling for greater fairness in the administration of parking fines.
• The Law Commission has produced a report entitled Criminal Records Disclosure: Non-Filterable Offences. The report examines the offences that cannot be filtered out of criminal records checks, and makes recommendations to improve the system.