02/10/2019

LA Spotlight 

Climate Change emergency – have you declared?
Do you need help to take the next steps?

The increasing numbers of councils declaring Climate Change Emergencies can be seen as the natural continuum of global and national policy work (including the UK’s Climate Change Act 2008) and/or as the accelerated start of significant change to the role of us all in tackling the issues.

As lawyers we anticipate playing a pivotal role in the coming years. We are already widely instructed to support and advise clients on schemes and issues that fall within the broader banner of addressing (and reducing) carbon emissions and tackling the climate change emergency. No doubt many of you are too, given that it touches most legal disciplines.

Over the coming weeks we are to produce a series of articles that will provide an insight into the key issues facing public sector clients with options, guidance and case studies demonstrating what can be done. We will be introducing supportive guidance notes to help navigate some of the more common (current) issues, such as:

- How to create binding strategies and policies
- How to bring your citizen’s voice into policy making
- How to use and adapt planning policy and what if you fail
- Options and types of schemes to help alter transport policy and emissions
- Options to address housing issues and wider energy efficiency debates
- Using procurement and commissioning strategies differently
- and many more besides.

We will be conducting a survey in the next fortnight to ask you for information that you feel most keenly about. This will help us shape the nature of the articles. 

If you are aware of other colleagues that may like to be involved then please put them in touch with us.

In the meantime if your council has declared a Climate Change Emergency and are wondering what to do next, please get in touch.

- Commercialisation;
- Place & Growth;
- Governance & Reorganisation;
- Contract Management; and
- Disputes & Regulatory Support.

 

 

Commercialisation

Health & Wellbeing - Prudent questions over the risks to disjointed methodology
The latest analysis on the approach to investment in the health and wellbeing agenda raises prudent questions over the risks to the disjointed methodology across the local authority sector (Creating healthy lives: a whole -government approach to long-term investment in the nation’s health).

The risks of the current approach is not deepening the socio-economic disparity in investment in health from geographical perspective, but reflective of the need for there to be continual push to better investment in the integrated health agenda. Public health has been back on the local authority agenda for several years since the Lansley reforms, however, a whole scale push for more innovation in its provision is still awaited. 

The link between health and wellbeing and prosperity is well tested, however, what is the level of priority from central government to actively support this agenda in a meaningful way?

On a local level, what can authorities do to shift from a short to a longer term solution for spending in this sector? Is there are case for continuing to seek in drawing funds from commercial investments (County announces two major property investments) to plough back in to the service? Is there still mileage in considering innovation in commissioning and better integrated working with health partners (Sorting out social care for all, once and for all) and indeed commitment to supporting schemes that promote this approach?

 

Publications and guidance

Councils in Crisis: Local government austerity 2009/10-2024/25
New Economics Foundation / TUC | September 8, 2019
The TUC and New Economics Foundation (NEF) have published a report on the impacts of local government funding reforms.  The reforms are cutting central government grants to councils to almost zero – with just a few ringfenced grants that will account for less than 9% of local authority expenditure. Councils will instead keep a higher proportion of the business rates they collect. The report identifies major problems with the funding reforms, including greater exposure of council funding to the economic harm expected from a no-deal Brexit.

Waste Strategy: Implications for local authorities
Housing, Communities and Local Government Select Committee | September 5, 2019
The Committee warns that the strategy risks placing a needless burden on local authorities by enforcing a prescriptive national approach to recycling and waste management. By enforcing rules on aspects including the frequency of collections, or which services should or should not be charged for, the strategy does not allow the flexibility for councils to react to local conditions.

Creating healthy lives: a whole-government approach to long-term investment in the nation’s health
The Health Foundation | September 10, 2019
Over the past decade there has been a significant shift in expenditure across government, moving from spending on the services and infrastructure that help people stay healthy, towards addressing problems that could be avoided in the first place.  This short-term approach is storing up significant problems for the future and runs the risk of widening inequalities in people’s health.  This publication makes the case for an ambitious, whole-government approach to long-term investment in the nation’s health. It includes five big shifts needed to embed a shared goal to improve health across the whole of government.

Sorting out social care for all, once and for all
ADASS | August 29, 2019
The report sets out what needs to be done by the Government to tackle the social care crisis: Short-term funding, including continuation of the Better Care Fund and Improved Better Care Fund, to prevent the further breakdown of essential care and support over the course of the next financial year; Long-term funding and reform following, to enable us to build care and support for the millions who need it and create a social care system that is truly fit for the 21st century; A long-term plan for adult social care which means a support system in place that links with other public services including the NHS and supports resilient individuals, families and communities.

Spending Round 2019
HM Treasury | September 4, 2019
The Chancellor of the Exchequer delivered his Spending Round to Parliament on Wednesday 4 September 2019. Read a summary of what was announced, or view the document in full. Published on 10th September, the MHCLG also released a news story, Spending Round gives big boost to local communities.

See also, editorial opinion from The MJ, Sajid’s spending no closer to fixing our broken sector, and LGC, A massive bender after a miserable decade of sobriety (both subscription only), plus from the House of Commons Library, The 2019 Spending Round: Why do figures differ? and Background to the 2019 Spending Round.

Brexit: no deal preparations for local authority children’s services in England
Department for Education | Last updated August 19, 2019
Advice to local authority children’s services in England on how to prepare in the event that the UK leaves the EU without a deal.

Local government Brexit preparedness
MHCLG | Last updated August 13, 2019
Guidance to help local councils get ready for Brexit. Contents: Health and social care; Schools and education providers; Access to public services; The EU Settlement Scheme; Community engagement; Business support; Regulatory services; Internal operations.

 

News

Home of Glastonbury B&Q store bought by South Somerset District Council in latest move to bring in funds
Somerset County Gazette | September 8, 2019
The site of a B&Q store is the latest investment by a Somerset council, costing £4.4m.  South Somerset District Council has purchased the site of the Glastonbury store as part of its bid to invest in a 'diverse range of assets' in order to generate income as it faces cuts from central government.

Major review into support for children with special educational needs
Department for Education | September 6, 2019
Five years on from reforms introduced to better support children and young people with special educational needs and disabilities (SEND), the review aims to improve the services available to families who need support, equip staff in schools and colleges to respond effectively to their needs as well as ending the ‘postcode lottery’ they often face.

Fair Funding Review delayed until next year
LocalGov | September 5, 2019
Local government secretary Robert Jenrick has confirmed that the Fair Funding Review and 75% business rate retention will be delayed until 2020-21.

County announces two major property investments
LocalGov | September 5, 2019
Cambridgeshire County Council has announced its investment in a 986 year lease of a Tesco site, and the purchase of a ten-acre industrial estate in Peterborough, in deals totalling more than £60m.

Mastering the art of commercial destiny
The MJ | August 20, 2019 [subscription only]
Article authored by Eric Bohl, director of public services at Activist Group, outlining the drive to generate more income and how best to participate in markets and commercial ventures.

Councils invited to apply for digital funding to boost services
MHCLG | August 19, 2019
Councils looking to improve public services through innovative uses of digital technology can apply for funding grants of up to £350,000.  Projects bidding for the Local Digital Fund of up to £7.5m must be shared by councils working together to explore how digital technology can improve public services for residents in innovative ways.

Mastering the art of commercial destiny
The MJ | August 20, 2019 [subscription only]
Article authored by Eric Bohl, director of public services at Activist Group, outlining the drive to generate more income and how best to participate in markets and commercial ventures.

Councils invited to apply for digital funding to boost services
MHCLG | August 19, 2019
Councils looking to improve public services through innovative uses of digital technology can apply for funding grants of up to £350,000.  Projects bidding for the Local Digital Fund of up to £7.5m must be shared by councils working together to explore how digital technology can improve public services for residents in innovative ways.

Council-owned solar farm generates £1.2m for frontline services
LocalGov | August 14, 2019
A solar farm in Lakenheath has raised nearly £4m for West Suffolk Council in sales to the National Grid since August 2016.  The council calculates that the solar farm has generated £560,000 towards the funding of frontline services this year alone, bringing the total amount raised in three years to £1.2m.

Council reserves rise to record levels
Room 151 | August 22, 2019
Provisional outturn figures published by the MHCLG show that non-ringfenced revenue reserves held by councils rose to £23.7bn, the highest level since 2010. There is conflicting analysis of what this means for local authorities, with some commentators saying this shows that councils can make savings despite cuts, whilst others state that councils are being forced to put money aside in the face of financial uncertainty.

Local government finance and the 2019 Spending Review
Housing, Communities and Local Government Select Committee | August 21, 2019
The Government has been derelict in its duty to local authorities by failing to set out a funding settlement that addresses immediate service pressures or plan for future challenges. The Housing, Communities and Local Government Committee calls on the Government to end its piecemeal approach to local authority funding and revenue raising. It calls on the Government to provide a financial settlement that adequately supports local authorities to serve their communities and close the multi-billion gap in local authority funding.

Council-owned solar farm generates £1.2m for frontline services
LocalGov | August 14, 2019
A solar farm in Lakenheath has raised nearly £4m for West Suffolk Council in sales to the National Grid since August 2016. The council calculates that the solar farm has generated £560,000 towards the funding of frontline services this year alone, bringing the total amount raised in three years to £1.2m.

Combined authority moots buses takeover
LGC | September 2, 2019 [subscription only]
West Yorkshire Combined Authority (WYCA) may try to take two major local bus operators' services under public control.  A report due to go before the WYCA transport committee on 6 September said officers would seek to hold talks with potential buyers of bus operations in West Yorkshire.

Portsmouth’s energy firm sale falls through
LocalGov | August 29, 2019
Portsmouth City Council will wind down its energy company, Victory Energy, after a prospective sale fell through.  Councillors were told in November the authority’s investment in the firm amounted to between £2.8m to £4m.

Council creates lettings agency in bid to ease housing pressure
The MJ | August 28, 2019 [subscription only]
Salford City Council has launched its own lettings agency, Salford Property Link, as part of a package of measures aimed at easing pressure on housing.  The agency matches people on the housing waiting list with landlords.

Children's care crisis: councils forced to overspend almost £800m on children's social care
Local Government Association | August 27, 2019
Analysis of new figures by the LGA shows that councils budgeted an additional £542m in 2018/19 for children’s social care. Despite this - and trying to protect children’s social care budgets by diverting cash from other local services - councils had to spend £770m more than they planned.

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Place & Growth

A realistic pathway to home ownership
Against the backdrop of steadily rising house prices over the last 50 years (notwithstanding the deflation of the “property bubble” during the recessions in that period), the Government has been consulting on “making home ownership affordable”.  This is essentially a push to investigate whether a reform to shared ownership will make it easier for owners to purchase shares, sell properties, and get a mortgage.

The paper outlined how the Government wanted to provide a “realistic pathway to full ownership”. It proposed flexible staircasing - enabling owners to buy shares in much smaller increments.

The benefits of this to housing providers could include:

- increased capital returns on “sales” products which would release capital to reinvest in new development products (although admittedly it will take a lot of 1% shares to produce enough capital to make a significant difference!); and
- perhaps an improved perception of shared ownership as a genuine route to becoming a full owner.

However, the obstacles are not insignificant:

- allowing smaller increments will make it more likely that owners do not need to take further borrowing to increase their share, raising the prospect of shared owners wanting to do it themselves which will cause an administrative burden; and
- Some form of valuation would still be required. The guidance suggests using a “fair-HPU based” valuation. This being an indexed based on average prices and representative data, not a property specific valuation. Therefore, there could be a risk that an HPI based valuation could result in either the owner or the housing provider not being treated fairly.

We await the outcome!

 

Publications, consultations and guidance

Benefits and costs of an enhanced Clean Air Fund
CEPA report to UK 100 | September 3, 2019
A report released by UK100, a network of local leaders, shows that towns and cities could see an economic return of £6.5bn with support from the Government to tackle illegal levels of air pollution. This cross-party group of political leaders from across the country are calling for Government support to tackle air pollution by supporting a network of 30 new and existing Clean Air Zones, where the most polluting vehicles are fined.

Healthy New Towns
NHS England | September 3, 2019
The Healthy New Towns programme worked with 10 demonstrator sites across England to explore how the development of new places could create healthier and connected communities with integrated and high-quality services. The learning from the programme, titled Putting Health into Place, is outlined across 10 principles in a set of publications.

Transport investment in the Northern Powerhouse: 2019 update
IPPR North | August 19, 2019
An analysis of the government’s planned transport spending shows that, unless investment in the Northern Powerhouse goes ahead, London is set to receive almost three times more per person than the North; and seven times more per person than in Yorkshire and the Humber or the North East.

Highland Council launches Visitor Levy Consultation
Highland Council | August 15, 2019
Highland Council has launched a consultation on a potential Highland Transient Visitor Levy. The Council has not yet made a decision on whether to implement a Transient Visitor Levy (TVL), also known as a Tourist Tax. The Council’s rationale for considering a Visitor Levy is that visitors should help contribute to the maintenance and development of the free public services and infrastructure they use. Depending on how a scheme was designed, a visitor Levy could generate between £5m and £10m each year to invest in Highland tourism. (See also commentary from Public Finance, Tourist tax: a local government funding answer or a tax too far?)

 

News

Bristol launches search for partner to deliver UK’s first carbon neutral city
Energy Service Bristol | September 9, 2019
The aim of the Bristol City Leap project is to deliver a zero-carbon, smart energy city by 2030.  Led by Bristol City Council and Bristol Energy, the city’s energy company, City Leap will establish a joint venture with another organisation or group of organisations to support the delivery of the UK’s first carbon neutral city by 2030.  The council has issued a concession notice for the City Leap Energy Partnership.

Energy firms plan UK's first carbon-neutral 'industrial cluster'
The Guardian | September 9, 2019
An alliance of energy companies including National Grid, Drax and Norway’s state energy company, Equinor, are leading a campaign to shrink the carbon footprint of Britain’s most polluting industrial zone, by planning the UK’s first carbon-neutral “industrial cluster” in the Humber.  Lord Haskins, the chair of the local enterprise partnership, said it planned to work with businesses across the Humber “to make this ambitious plan a reality”.

100 places to benefit from new Towns Fund
MHCLG | September 6, 2019
100 places have been invited to develop proposals for a new generation of multi-million-pound Town Deals. Communities, businesses and local leaders will now join forces to draw up ambitious plans to transform their town’s economic growth prospects with a focus on improved transport, broadband connectivity, skills and culture. The government will soon publish a prospectus to guide towns through the process and set eligibility criteria for funding.  (See also The MJ’s ‘How marginal seats dominate towns fund list’, subscription only)

Tower Hamlets appoints Sustrans for first wave of new school streets
LocalGov | September 6, 2019
Tower Hamlets has launched a scheme to create 50 streets where traffic is diverted away from school gates, to be delivered by the charity, Sustrans.  Beginning in the autumn, proposed changes to the road network and surrounding environment will be developed with the first wave of schools before a public consultation.

Commons Bill to boost council compulsory purchase powers
24housing | September 4, 2019
Councils could acquire sites where planning permission has not been implemented in full within five years under the Compulsory Purchase and Planning Bill.  The Bill proposes that councils or ‘relevant bodies’ should be enabled to acquire sites if they can commence development within 12 months of the acquisition and that at least 50% of the development is completed within three years. [N.B. Second reading is yet to take place.]

Lawyers put local authorities on notice over climate inaction
ClientEarth | September 2, 2019
Lawyers from ClientEarth are putting 100 local authorities across England on notice, warning them that they will violate their legal obligations and risk legal challenge if they do not introduce proper climate change plans.

Environmental lawyers are writing to each local authority that is currently developing a new local plan, giving them eight weeks to explain how they will set evidence-based carbon reduction targets and ensure these targets are then central to their new planning policy. 

Open consultation: Proposed reforms to permitted development rights to support the deployment of 5G and extend mobile coverage
MHCLG and DCMS | August 27, 2019
This consultation seek views on the principle of amending permitted development rights for operators with rights under the Electronic Communications Code (Code Operators) to support deployment of 5G and extend mobile coverage, and the circumstances in which it would be appropriate to do so.  The consultation also seeks views on whether it is appropriate to impose specific limitations, conditions and restrictions on any amendments to permitted development rights to mitigate the impact of any new development.

£1b Future High Streets Fund expanded to 50 more areas
MHCLG press release | August 26, 2019
An extension to the Future High Streets Fund shortlist means that an additional 50 towns across England will join 50 successful areas already shortlisted to develop plans to reinvent their high streets. The funding could be used by these areas to improve transport and access into town centres, convert empty retail units into new homes and workplaces, and invest in vital infrastructure.

Leeds travel: Ideas wanted for new mass transit system
BBC | August 23, 2019
Transport experts have been invited to submit ideas for a new mass transit system serving Leeds.  Leeds was previously set to get trolley buses and a Supertram but both were scrapped. West Yorkshire Combined Authority is hoping to deliver a new transport scheme by 2033.  See more information on WYCA’s website.

Councils accused of ‘restricting’ retail to residential conversions
LocalGov | August 23, 2019
Research from private wealth law firm Bootle Hatfield has found that retail to residential conversions dropped 17% in the last year, with the fall driven in part by local authority scepticism over Permitted Development Rights.

Government announces independent review into HS2 programme
Department for Transport and High Speeds Two (HS2) Limited | August 21, 2019
The terms of reference of this independently-led government review confirm that it will look at whether and how HS2 should proceed, using all existing evidence on the project to consider: its benefits and impacts; affordability and efficiency; deliverability and scope; its phasing, including its relationship with Northern Powerhouse Rail.  (See also: HS2 proposals could bring £1.4bn of benefits, Midlands transport body says, from LocalGov)

TfN submits £700m proposals for National Roads Fund
LocalGov | August 21, 2019
Transport for the North (TfN) has submitted bids worth £700m to the National Roads Fund, including 12 schemes for the major road network (MRN) and four for the large local majors (LLM).  The bids were made in collaboration with its 20 local transport authority members and 50 highway authorities.

County leaders seek fairer funding commitment from new PM for ‘underfunded and overburdened councils’
County Councils Network | August 19, 2019
More than 30 leaders of England’s largest councils urged the Prime Minister to see through his promise to ‘level up’ funding for the country’s ‘left behind’ places, with shire county areas missing out on £3.2bn of funding per year compared to other parts of the country.  Local councils in England’s rural and shire counties are the lowest funded upper-tier authorities; receiving just £240 per person for public services such as social care, children’s social services, public health, bin collections and libraries – this is 60% less compared to residents in inner London receive (£601) and 46% less compared to councils in metropolitan and city authorities (£419).

£600m boost for housing
MHCLG / HM Treasury | August 17, 2019
Up to 50,000 new homes in high demand areas will be delivered through over £600m of new investment for housing. The funding will be made available through the Housing Infrastructure Fund.  The funding will help deliver five projects in London, Central Bedfordshire and Essex.

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Governance & Reorganisation

Information – the life blood of an organisation
It is often stated that information is the life blood of an organisation, and this is particularly true of local government. In the post GDPR arena and an increasing awareness of information rights, it has never been as important to ensure that strong standards of governance, and clearly defined policies and procedures, are in place. This not only goes towards ensuring regulatory compliance, but is also essential for effective operations in what are increasingly internet and technology driven times.

Bevan Brittan’s Judith Barnes and David Kitson discuss some of the issues in their recent article Digital duties: Monitoring Officers must ensure good governance over data and social media

 

Publications, guidance and consultations

Community resilience development framework
Cabinet Office | September 3, 2019
This guidance helps emergency planners ensure communities are central to emergency planning, response and recovery.  The Community Resilience Development Framework (CRDF) is an update to the Community Resilience Framework for Practitioners (2016), reflecting the wider landscape of activities and capabilities being captured under the term Community Resilience (individual resilience, social action, voluntary capabilities). It also now aligns with the priorities of DCMS’s Civil Society Strategy (2018).

Community Infrastructure Levy
MHCLG | Last updated September 1, 2019
This guidance explains what the Community Infrastructure Levy is and how it operates. It has been updated to explain the Community Infrastructure Levy (Amendment) (England) (No. 2) Regulations 2019 which came into force on 1 September 2019. An accompanying MHCLG press release states that “local people will be able to see how every pound of property developers’ cash, levied on new buildings, is spent supporting the new homes their community needs”.  The Ministry has also published specific guidance on publishing your developer contributions data.

Democracy Denied: The 2019 Election Audit
Electoral Reform Society | August 22, 2019
This analysis of the English local elections reveals that in nearly half of all English local councils a single party was able to secure more than half of the councillors up for election, while winning fewer than half of votes cast across the local authority area. Other areas saw parties winning the most council seats, of those up for election, when they had not won the most votes in the area. Over 800,000 potential voters were affected by hundreds of uncontested and under-contested seats, in wards in councils across England where democracy was “effectively cancelled”.

Code of Audit Practice Consultation: Stage 2
National Audit Office | August 21, 2019
The NAO is now consulting on the draft text of the new Code of Audit Practice. The consultation is open to everyone and information about how to respond can be found in the consultation document. The consultation will close on 22 November 2019. Schedule 6 of the Act requires that the Code be reviewed, and revisions considered at least every five years. The current Code came into force on 1 April 2015, and the maximum five-year lifespan of the Code means it now needs to be reviewed and a new Code laid in Parliament in time for it to come in to force no later than 1 April 2020.

Blog: Three top issues for town and parish councils
Information Commissioner’s Office | August 14, 2019
The ICO has launched a number of bite-sized resources which address the top three GDPR compliance challenges identified through feedback gathered from the sector: use of own devices for council work; data audits; data sharing.

Missing millions still missing – a vision for electoral modernisation in the UK
University of East Anglia | August 14, 2019
As speculation about an early general election gathers momentum, this report reveals a “silent crisis” in UK electoral processes – with poor voter registration and funding cuts.  Solutions provided in the report include providing a website so people can check if they are registered, registering young people in schools and universities, providing a centralised complaints system and allowing citizens to vote at any polling station. 

 

News

New panel to consider overhaul of local government oversight
LGC | September 11, 2019 [subscription only]
The MHCLG has formed a new Local Authority Governance and Accountability Framework Review Panel, which met for the first time last week.  Its purpose is to "to assess the framework to determine whether it is fit for purpose and to make suggestions for its improvement”.  Its members are representatives from key stakeholders such as Local Government Ombudsman, LGA, CIPFA, NAO, SOLACE and Centre for Public Scrutiny.

MHCLG ‘reached a different view’ on Peterborough capital receipts
LGC | September 9, 2019 [subscription only]
After an investigation earlier this year by the Bureau of Investigative Journalism revealed that Peterborough City Council had used £23m raised from selling assets to balance its books between 2015 and 2018, the Ministry has concluded that no further action will be taken against the Council at this time, despite FOI requests revealing that officials had expressed concern at the council’s approach.

High Court overturns Highworth election result
LocalGov | September 9, 2019
Swindon Borough Council has welcomed a High Court decision to overturn an election which saw the wrong candidate elected as a councillor. Only 2,477 ballot papers were issued for the Highworth town council poll in May, but over 40,000 votes were counted when block votes for the Conservatives were counted for each of the candidates rather than split between them. 

Council 'hopeful' of avoiding pensions fine
The MJ | September 9, 2019 [subscription only]
After being issued an improvement notice in July relating to pension fund administration, Barnet LBC has told the Pensions Regulator that efforts are being made to improve the service. However, councillors heard last week that there are ongoing issues with the scheme, which is run by Capita.

Petition support means city set to hold referendum on proposed change in governance
Local Government Lawyer | August 28, 2019
The activist group It’s Our City used provisions of the Localism Act 2011 to require the city council to hold a referendum on ending the cabinet system and reverting to committees. The group collected the signatures of more than 5% of electors, as required for a petition subject to be put to a referendum after verification.

Devolve powers and funding to get more young people into work, LGA says as NEET numbers rise
Local Government Association | August 22, 2019
The number of young people not in education, employment or training (NEET) in the UK has risen by almost 30,000 over the last three months, new figures show.  Council leaders say devolved powers and funding are necessary to get more young people and disadvantaged jobseekers into education, employment or training. This means giving councils and local partners the power to deliver their own apprenticeship offer, local careers advice and guidance, as well as more support for schools to assist with post-16 pathways.

Brexit blow as councils miss MHCLG deadline
The MJ | August 20, 2019 [subscription only]
Over 40 councils have not yet nominated a Brexit lead officer, missing the deadline set by the Secretary of State for Housing, Communities and Local Government.

Dales council leaves Sheffield Enterprise Partnership to stay in D2N2
Matlock Mercury | August 20, 2019
Following a Government order requiring Local Enterprise Partnerships to remove any overlapping geographical membership, Derbyshire Dales DC has had to leave Sheffield Enterprise Partnership in order to remain a member of the Derby Derbyshire Nottingham Nottinghamshire (D2N2) LEP.

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Contract Management

How do you sign your contracts?
The Law Commission has published a report on the electronic execution of documents.  The report is the output of a project aimed at making it easier to execute documents electronically.  This project is linked to the commission planned project on smart contracts.

The report seeks to clear up any doubts about whether documents signed electronically have legal force, even when a statutory requirement for a signature predates the digital age.  The commission states that it has been told that issues around the electronic execution of documents, including uncertainty around the legal status of electronic signatures, are inhibiting the use of new technology where legislation requires a document to be “signed” or executed as a deed.

The report begins with a two-page statement of the law in the view of the commission and confirms that:

  1. an electronic signature is capable in law of executing a document (including a deed) providing that the person signing intends to do so;
  2. other formalities may still be required, for example that the signature is witnessed or in a specified form (which may include that the signature is handwritten);
  3. an electronic signature is admissible in evidence in legal proceedings.

The report goes on to discuss recommendations on practical issues including the development of best practice guidance for the use of electronic signatures in different commercial transactions.  It also lays out an option for reform stating that whilst the current law already provides for electronic signatures, Government may wish to consider codifying the law on electronic signatures in order to improve the accessibility of the law.

 

Publications, consultations and guidance

Small businesses advised to “prepare for all scenarios” in a no-deal Brexit
ICO | September 11, 2019
The ICO has published guidance to assist small and medium-sized business in their preparations for the possibility that the UK leaves the European Union with no deal. The ICO urges business to “prepare for all scenarios” to maintain data flows when UK leaves the EU.  The guidance provide the same advice previously published on how to maintain data flows but has been produced to be more relevant and accessible to small and medium-sized businesses.

Public-sector procurement after a no-deal Brexit
Cabinet Office | Last updated September 4, 2019
Information for public authorities, businesses and other organisations on the outcome for public procurement policy in a no-deal Brexit scenario.  One key difference for contracting authorities will be the need to send notices to a new UK e-notification service instead of the EU Publications Office.  The government has amended current legislation so that UK contracting authorities will be required to publish public procurement notices to Find a Tender (FTS), which will be deployed at 11pm GMT on 31st October in the event that the UK leaves the EU without a deal.

Consultation on improving the communication with local and regional public authorities
European Commission | August 22, 2019
The European Commission would like to promote and facilitate the correct application of EU Public Procurement law by local and regional public procurement practitioners in the 28 EU Member States. An online survey has been opened to help the European Commission understand the type and form of information related to public procurement law, policies and tools needed to perform work effectively and in compliance with law.

European Structural and Investment Funds National Procurement Requirements
MHCLG / DWP / BEIS | August 16, 2019
The European Structural and Investment Funds Growth programme provides funding for projects designed to create jobs and support local growth. The funds include the European Social Fund (ESF) and the European Regional Development Fund (ERDF).  The government’s guidance document has been updated to reflect an updated list of breaches and penalties put in place by the European Commission.

 

News

Think tank reveals outsourcing's "mixed" record
LocalGov | September 16, 2019
Outsourcing services has delivered savings to citizens, although politicians have “consistently overstated” the extent of these savings.

Late invoice payers targeted by new procurement rules
Supply Management | September 13, 2019
New rules designed to make sure government suppliers pay their bills on time came into force on 1 September.  The rules mean all government suppliers must pay 95 per cent of their invoices within 60 days or run the risk of losing out on major government contracts.

Unite calls for privatised services to be brought back in house
unitelive.org | September 9, 2019
Unite delegate Philippa Marsden joined growing calls to bring privatised services back into public hands as she seconded a motion on the issue at conference on 9 September.

Counties to enter long-distance partnerships
LGC | September 4, 2019 [subscription only]
Despite being 160 miles apart, Derbyshire County Council is planning to set up joint ventures with companies owned by Suffolk County Council.  Cleaning and caretaking services will be provided by a JV with Vertas, and construction design services by a JV with Concertus.

Volumatic Ltd v Ideas for Life Ltd  
BAILII | August 29, 2019
The case provides a review of a number of legal issues including looking at the risk of trading and or accepting the supply of services before a formal binding agreement is in place between the parties.  The case also provides a reminder of the risks of delaying enforcement under the contract, going so far as to suggest that conduct may then be deemed to preclude reliance on the contract terms at all and the importance of understanding the appropriate remedies and following the contractual processes.

£450m flagship regeneration project scrapped
LocalGov | August 28, 2019
Southampton City Council has triggered the termination of the development agreement it signed in 2014 with RPW (Southampton) Limited, a joint venture company owned by Morgan Sindall and funders Lucent Group.  The £450m Royal Pier Waterfront plan was previously described as a ‘flagship project’ by the council, one of the landowners.

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Disputes

The “mechanics” of ineffectiveness
Basingstoke and Deane Borough Council recently fought off a High Court challenge relating to the redevelopment of Basingstoke Leisure Park and the decision of the Council to enter into a Development Agreement with Newriver Leisure Ltd, the only bidder to submit a final tender. The Claimant, AEW Europe, sought to challenge the tender process on the basis that after the initial contract notice had been issued in the OJEU in 2013, but before the Development Agreement was entered into some years later, the scheme had evolved and the development proposals had become much ‘bolder’, which constituted a ‘very substantial change’ that was contrary to the procurement rules. The Claimant argued that the Development Agreement should be declared ineffective by the Court, as the extent of the changes to the development proposals meant that the Development Agreement entered into was substantially different to the terms of the procurement that had been initiated by the contract notice. 

The Court held that the Contract Notice was valid and there is nothing in the Public Contract Regulations 2015 which requires a further notice of call for competition if the contract that is ultimately entered into substantially relates to the advertised project. The judge commented that in deciding whether there is a sufficient connection between what was advertised in the Contract Notice and the resulting Development Agreement, a “broad-brush approach” should be taken. The reason for this approach was pragmatism. The judge noted that ineffectiveness is a draconian remedy which brings an otherwise lawful contractual relationship to an end. This might indicate a certain aversion on the part of the Court to making such a declaration, with the potentially disruptive consequences it could have for major projects. 

We regularly advise authorities on mitigating procurement risk particularly in the context of major developments and other projects, and note that this was a welcome decision. It will allows a considerable degree of flexibility and alleviate concerns about being limited by information provided early on at the contract notice stage, provided of course that there is sufficient linkage between the OJEU contract notice and the contract ultimately let.

 

News

Council to pursue legal action against builder of housing block it is evacuating
Local Government Lawyer | September 4, 2019
The London Borough of Hackney has said that it will take legal action again Willmott Partnership Homes, the builder of Bridport House.  The housing black is being evacuated to replace incorrect “potentially combustible insulation”.  The builder states that the insulation was Building Regulations compliant and that other contested aspects of the build were detailed in the council’s tender specification.

Campaigners refused permission to appeal ruling on closure of children’s centres
Local Government Lawyer | August 29, 2019
A campaign group has failed to obtain permission to appeal the High Court ruling made in L (An Infant), R (On the Application Of) v Buckinghamshire County Council [2019] EWHC 1817.  Mrs Justice Andrews ruled that the council had carried out fair consultation before making the decision to close 19 out of its 35 children’s centres, and that the decision by the Cabinet at Buckinghamshire County Council was lawful.

County to pay mother £24k after Ombudsman report into overcrowding and failure to comply with care order
Local Government Lawyer | August 29, 2019
The Local Government and Social Care Ombudsman carried out an investigation into Local Lancashire County Council, in a case where long-term overcrowding resulted after a mother of three agreed to care for her two grandchildren, but the council did not provide an extension to her house as was promised as part of a care order.

Court defines duty of care after alcoholic dies in rough sleeper centre
24housing | August 28, 2019
In a judicial ruling in Scotland that has significant implications for charities and councils providing homeless services, Scotland’s Court of Session has ruled that no duty of care was owed to an alcoholic homeless man who died in a rough sleeper centre.

Council ban on protests outside abortion clinic upheld by appeal court
The Guardian | August 21, 2019
In Dulgheriu & Anor v The London Borough of Ealing [2019] EWCA Civ 1490, anti-abortion activists lost a court of appeal challenge against Ealing Council’s decision to ban protesters from gathering outside a Marie Stopes clinic in west London through a Public Spaces Protection Order.

Council accused of acting ‘unlawfully’ over housing of homeless people
LocalGov | August 20, 2019
Glasgow City Council has been threatened with legal action over its failure to provide homeless people with temporary accommodation.  Shelter Scotland has said it will seek a judicial review unless ‘systemic failures’ are addressed.

 

Cases

Bridges, R (On Application of) v The Chief Constable of South Wales Police [2019] EWHC 2341 (Admin) (04 September 2019)
From the judgment: The algorithms of the law must keep pace with new and emerging technologies. This case raises novel and important issues about the use of Automated Facial Recognition technology ("AFR") by police forces. The central issue is whether the current legal regime in the United Kingdom is adequate to ensure the appropriate and non-arbitrary use of AFR in a free and civilized society. At the heart of this case lies a dispute about the privacy and data protection implications of AFR. The Court concluded that the current legal regime is adequate to ensure the appropriate and non-arbitrary use of AFR Locate, and that SWP's use to date of AFR Locate has been consistent with the requirements of the Human Rights Act, and the data protection legislation. (See Sky News coverage here.)

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Events

Healthcare Estates Breakfast Briefings
Various dates & topics
Leeds, 8.30am 

Throughout 2019 and 2020, we are running a series of Breakfast Briefings focusing on key themes affecting healthcare estates. Our specialist lawyers will be joined by guest speakers at these engaging and interactive sessions, designed to explore issues of relevance to those involved in healthcare estates, whether in acute settings, in the community or in the provision of mental health or primary care and whether in the NHS or private sector.

 

Procurement Updates Roadshow
Birmingham     4 November 2019
Leeds               5 November 2019
London            6 November 2019 
Bristol              7 November 2019 
£25

Our popular roadshow will cover legislative and policy developments, including Brexit. There will be a focus on the practical impact on procurement processes of a number of recent UK court decisions. Further details of specific topics to be covered will be released closer to the time.

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