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Legal intelligence for professionals in local government.
This update contains brief details of recent Government publications, legislation, cases and other developments relevant to those involved in local government work, which have been published in the previous four weeks. Items are set out by subject, with a link to where the full document can be found on the internet.
If you have been forwarded this update by a colleague and would
like to receive it direct please email
Claire Booth.
All links are correct at the date of publication. The following
topics are covered in this update:
Adult Social Services
DCLG: Councils should help older people live at home for longer: this press release highlights available funding, projects and initiatives that give elderly people more choice and control over where they live. (17 January 2012)If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Children's Services
Welsh Assembly Government: Protecting children in Wales - Arrangements for multi-agency child practice reviews: Draft guidance: seeks views on proposed new arrangements for Child Practice Reviews that will replace the present Serious Case Review system. As part of the new framework, different types of reviews will be undertaken depending on the nature of the incident and the circumstances of the child involved. The consultation closes on 2 April 2012. (9 January 2012)
Welsh Assembly Government: Children and young people’s continuing care guidance: seeks views on draft guidance for local authorities, Local Health Boards and their partners on the planning and provision of childrens continuing care services. It describes the process for putting in place continuing care packages for those children and young people whose needs cannot be met by existing universal or specialist services alone. The consultation closes on 13 March 2012. (20 January 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Data Protection
European Commission: Commission proposes a
comprehensive reform of the data protection rules: announces
that the EC is proposing a comprehensive reform of the EU's data
protection rules to strengthen online privacy rights and boost
Europe's digital economy. The proposals include a policy
Communication setting out the EC's objectives, a Regulation setting out a general EU framework for
data protection and a Directive on
protecting personal data processed for the purposes of prevention,
detection, investigation or prosecution of criminal offences and
related judicial activities that would replace the Data Protection
Directive 95/46 which is implemented in the UK by the Data
Protection Act 1998. The proposals strengthen the position of
individuals, recognise important concepts such as privacy by design
and privacy impact assessments and require organisations to be able
to demonstrate that they have measures in place to ensure personal
information is properly protected. (25 January 2012)
The Information Commissioner has issued his initial response to the EC's proposals in which
he sets out the key measures and gives his mixed reaction to the
proposals, welcoming some but raising concerns about others.
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Economic Development
DCLG: 'City deals' to be widened across England: announces that the City Deals initiative is to be extended to more cities in England, offering them the chance to agree a bespoke deal with Government to unlock their potential to drive economic growth. First launched in December 2011 for the eight Core Cities, City Deals give cities new powers and funding in exchange for guarantees that they can provide strong and accountable leadership, improve efficiency and outcomes, and be innovative in their approach. (23 January 2012)If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Education
DfE: Consultation on Raising the Participation Age (RPA) regulations: from Summer 2013 all young people will be required to participate in education or training until the end of the academic year in which they turn 17, and from summer 2015 onwards until their 18th birthday. This consultation seeks views on the policies that will form the secondary legislation, including: the definition of residency; the definition of full-time education; any wider ways of working that (when combined with part-time study) could be considered as participating; and the amount and the use of any fines. The consultation closes on 13 April 2012. (20 January 2012)Education (School Teachers' Appraisal) (England) Regulations 2012 (SI 2012/115): these regulations, which come into force on 1 September 2012, prescribe revised, shortened and simplified arrangements for the appraisal of teachers (including head teachers) employed by governing bodies and local authorities at maintained schools, and other teachers employed by local authorities (unattached teachers). They revoke and replace the Education (School Teacher Performance Management) (England) Regulations 2006 (SI 2006/2661); however, those regulations continue to apply to any performance management and review cycle which is in progress on 1 September 2012, unless the governing body or local authority decides to end that cycle early and to begin a new appraisal period starting on or after that date. (24 January 2012)
If you wish to discuss any of the items noted in this section please contact Caraline Johnson.
Executive Arrangements
DCLG: What can a mayor do for your city? Government response to the mayoral consultation: sets out the Government's response to the November 2011 consultation that sought views on its proposed approach for giving powers to any mayors elected in the 12 major English cities. It confirms that, rather than seeking to impose a 'one size fits all' approach, the Government will take advantage of the new power in the Localism Act 2011 to devolve power to mayors through negotiating a bespoke City Deal with each city. At this stage, the Government does not intend to reach any view about specific powers that might be devolved, or about a council’s scrutiny and accountability arrangements. Mayoral referendums will be held on the local Election Day in May 2012. (16 January 2012)DCLG: Election date announced for cities that say "yes" to mayors: announces that where a city votes in favour of having a mayor at its May referendum, that city will then hold the election for its first mayor on 15 November 2012 - the same date as the elections for Police Commissioners. Mayors would be elected for four year terms. (25 January 2012)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Finance
DCLG: A brief guide to the Local Government Finance Bill: gives a brief summary of the provisions in the Bill that introduce a rates retention scheme, enabling local authorities to retain a proportion of the business rates generated in their area, and provide a framework for the localisation of support for council tax in England. (19 January 2012)
DCLG: Business Rates Information Letter (2/2012) - Amendments to regulations: this letter provides information on the Non-Domestic Rating (Small Business Rate Relief) (England) Order 2012 (SI 2012/148) that revokes and replaces SI 2004/3351 in respect of chargeable days falling after 31 March 2012. It also sets out the draft text of the explanatory notes to be contained in demand notices, pending finalisation of the regulations required to cancel certain backdated rates bills that will take effect prior to 1 April 2012. (27 January 2012)
If you wish to discuss any of the items noted in this section please contact Jon Coane.
Highways
DfT: Lane rental schemes - Guidance to local authorities: s.74A of the New Roads and Street Works Act 1991 enables local authorities to put in place lane rental schemes under which they can charge utility companies up to £2,500 a day to dig up the busiest roads during peak times when road works cause the most disruption. The purpose of the schemes is to incentivise utility firms to carry out their works more quickly and at times when roads are quieter. DfT is now inviting applications from authorities interested in being pioneer authorities for lane rental schemes. This guidance states that the Government is prepared to approve up to three such schemes, in areas where the local authority has already sought to achieve the desired improvements through other means (including road works permit schemes). The guidance makes it clear that lane rental charges must be avoidable and proportionate to the costs of congestion. Councils are also being encouraged to apply the same principles to their own works and come forward with lane rental schemes which fit the needs of their local area. Any revenue raised from the implementation of lane rental charges will have to be used by councils to fund measures which could help to reduce future road works disruption. (26 January 2012)If you wish to discuss any of the items noted in this section please contact Martin Howe.
Housing
LGA & HCA: Meeting housing demand - A guide for elected members: guidance for councillors to help them understand better the shifting housing and growth agendas. It lays out many of the options available to councils, with suggestions as to how they could go about delivering new homes, improving existing ones and making housing central to local areas. It includes a number of case studies and a policy guide outlining some of the key changes and tools available to councils. (23 January 2012)
If you wish to discuss any of the items noted in this section please contact Penny Rinta-Suksi.
Human Rights
City of London Corporation v Samede (Representative
of those persons taking part in a protest camp at St Paul's
Churchyard, London EC4) [2012] EWHC 34 (QBD): the council
sought an order for possession of highway land and other open land
in the churchyard of St Paul's Cathedral, which had been occupied
by the defendants as a protest camp, along with injunctions to
require the removal of the tents and other structures comprised in
the camp. The issues were whether: (1) the council had
established that it was entitled to an order for possession of
the land, subject to the court's consideration of the interference
with the defendants' rights under Arts.10 and 11 ECHR; (2)
the council should succeed in its claim for injunctive and
declaratory relief (again subject to consideration of the
interference with the defendants' rights); and (3) the interference
with the defendants' rights under the ECHR would be
lawful, necessary and proportionate.
The court held, granting the relief sought, that:
- the council had established that it was entitled to an order for possession of the land, unless the grant of such an order would unacceptably affect the defendants' rights under Arts.10 and 11 ECHR. There had never been a right to occupy, control or take possession of highway land from the highway authority, either under the statutory regime in the Highways Act 1980 or at common law. The common law only recognised a limited right to protest on the highway, provided that the activity involved did not amount to a nuisance and did not unreasonably impede the right of the public to pass and re-pass. The statutory scheme in the 1980 Act could not be reconciled with the concept of third parties occupying, controlling and taking possession of the highway;
- the highway where the protest camp had been created had been significantly obstructed, and the effective width of the highway had been materially reduced. On the facts, and subject to the tests of necessity and proportionality being satisfied, the council was entitled to the injunctions it sought under s.130 of the 1980 Act and s.187B of the Town & Country Planning Act 1990, and to a declaration that, under its powers at common law, it could enter the land and remove any tents that had not been removed in accordance with those orders.
- the defendants were, in principle, entitled to express their views and to assemble peacefully in a public place to do so but those rights were subject to the constraints placed on them by the ECHR. In making its own assessment of necessity and proportionality the court was not obliged to ignore the balance struck when the original decision was made, and it might be difficult to upset that where a local authority had balanced the rights of individuals against the wider interest and had reached a conclusion on a rational and defensible basis. It was not for the court to venture views of its own on the substance of the protest itself, or to gauge how effective it had been in bringing the protestors' views to the fore. The Convention rights were neither strengthened nor weakened by a subjective response to the aims of the protest itself or by the level of support it seemed to command. The harm caused by the camp was materially greater than the harm that would be likely if the protest were conducted by the same protestors assembling every day but without the tents and all the other items they had brought to the land. When the balance was struck, the factors for granting relief here easily outweighed the factors against. The effects of the protest camp were to interfere seriously with the Art.9 rights of the cathedral's worshippers and its visitors. In addition to the obstruction of the highway, the camp had affected pedestrian routes, resulted in loss of public open space, strained the local drainage system, caused noise and odour nuisance, damaged the trade of local businesses, made a material change in the use of the land, and stimulated anti-social behaviour and criminal activity.
The council had convincingly established a pressing social need not to permit the defendants' protest camp to remain on the land and to prevent it being located elsewhere and it would not be disproportionate to grant the relief claimed. (18 January 2012)
If you wish to discuss any of the items noted in this section please contact Steven Eccles.
Licensing
Home Office: Dealing with the problems of late night drinking: seeks views on the implementation of two new powers desigined to help communities deal with problems associated with late night drinking: early morning restriction orders (EMROs) and the late night levy. These will be implemented through regulations under the Police Reform and Social Responsibility Act 2011. The consultation covers: the process of adopting an EMRO and/or the levy; categories of business which will be exempt from any EMRO; categories of business which individual licensing authorities may choose to exempt from, or afford a reduction in relation to, the late night levy; and the kinds of services a licensing authority may fund with the 30% of net levy receipts that it may retain from the net levy revenue. The consultation closes on 10 April 2012. (17 January 2012)Home Office: Background checks for taxi drivers: the Criminal Information Minister Lynne Featherstone has announced that taxi licensing authorities will be able to carry out enhanced criminal records checks on taxi drivers before issuing them with a licence. Current drivers will get additional checks when they renew their licence. The proposed changes are part of plans to simplify and reform the system of criminal records checks, while ensuring adequate protections are in place where they are needed most. Licensing authorities will make the final decision on whether to grant a licence based on the information available to them. (18 January 2012)
If you wish to discuss any of the items noted in this section please contact Adam Kendall.
Localism Act 2011
Localism Act 2011 (Commencement No. 2 and Transitional and
Saving Provision) Order 2012 (SI 2012/57 (C.2)): this Order
brings various provisions of the 2011 Act into force on 15 and
31 January 2012. The provisions coming into force on 15 January
include those relating to: transfer and delegation of functions to
certain authorities; governance of local authorities; allocation of
social housing and tenancy strategies; and neighbourhood
development orders. Those coming into force on 31 January 2012
relate to abolition of the Standards Board. Note that a number of
other provisions also come into force on 15 January under s.240 of
the Act, including sections on pre-determination and pay
accountability. (11 January 2012)
Bevan Brittan has published a Commencement Table that shows when the provisions of
the 2011 Act come into force (where known, as at January
2012).
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Officers
Ryan v Shropshire Council (Unreported) (QBD): R, the owner of a shooting range, brought a claim against the council for misfeasance in public office. W, a health and safety inspector employed by the council, served R with schedules of contraventions under the Health and Safety at Work etc Act 1974 following his inspections of the shooting range in 2002 and 2005. R claimed that W was not validly authorised to act as health and safety inspector; alternatively, if W was validly authorised his conduct in relation to both inspections was oppressive, threatening and irrational and he thereby compelled R to incur expense on the reconfiguration and reconstruction of the ranges which was entirely unnecessary.The court held, dismissing R's claim, that the council's Chief Executive had power under the delegated functions provisions in the Constitution to appoint health and safety inspectors and so W had been validly appointed. This was not a claim in negligence - there was clear and binding authority that a health and safety inspector did not owe any duty of care to the owner of an enterprise inspected (Harris v Evans [1998] 1 WLR 1285). The tort of misfeasance in public office involved subjective bad faith in the exercise of public powers. The claim relating to the 2002 inspection failed on its merits and was in any event statue-barred. Regarding the 2005 inspection, that claim also failed. W was entitled to rely on an expert's advice. The expert had strong concerns about the safety of the range and W could not have ignored those concerns. His only motivation was a proper concern for the safety of the firing range. (11 January 2012)
The judgment is available on Lawtel (password required).
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Parish Councils
Compact Voice: Guidance for local (parish and town) councils on the Compact: local compacts are agreements between local government and the voluntary and community sector in England which set out principles that should underpin their partnership working. This guidance provides information about the purpose and benefits of local compacts to town and parish councils. (26 January 2012)
If you wish to discuss any of the items noted in this section please contact Olwen Dutton.
Police Authorities
Mayor of London: Mayor Boris Johnson heads UK’s first Office for Policing and Crime: announces that the Mayor’s Office for Policing and Crime (MOPC) has replaced the Metropolitan Police Authority. This means that the Mayor now has the legal power to determine the policing priorities for the Metropolitan Police Service (MPS) and respond to the needs of the communities that the MPS serves. The Mayor has appointed Kit Malthouse to lead the work of the Mayor’s Office for Crime and Policing, which has an annual budget of £11m. A Police and Crime Committee consisting of 12 elected members of the London Assembly will scrutinise the work of MOPC and meet regularly to question the Deputy Mayor of Policing and Crime. Elections for the other 41 Police and Crime Commissioners in England and Wales will take place on 15 November 2012. (16 January 2012)Home Office: Financial management code of practice for the police service of England and Wales: this revised Code of Practice reflects the Government’s reform of policing through the introduction of police and crime commissioners. The code provides clarity around the financial governance arrangements within the police service in England and Wales and builds on the policing protocol issued by means of the Policing Protocol Order 2011. (16 January 2012)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
Public Health
DH: Healthy lives, healthy people - Improving outcomes and supporting transparency: the new public health system will be refocused around achieving positive health outcomes for the population and reducing inequalities in health, rather than focused on process targets, and will not be used to performance manage local areas. This Public Health Outcomes Framework sets out the desired outcomes for public health and how these will be measured. It focuses on two high-level outcomes:
- increased healthy life expectancy; and
- reduced differences in life expectancy and healthy life expectancy between communities.
The framework covers the roles of local government, the NHS and Public Health England, and their delivery of improved health and wellbeing outcomes for the people and communities they serve. From April 2013, local authorities will be given a ring-fenced budget (sharing around £5.2bn based on 2012/13 funding) which they can choose how to spend according to the needs of their population. They will also be paid a new health premium for the progress they make against the public health indicators. (23 January 2012)
If you wish to discuss any of the items noted in this section
please contact Olwen
Dutton.
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Shared Services
Welsh Assembly Government: Shared purpose - shared delivery: seeks views on new statutory guidance which is intended to integrate local service planning, streamline partnership working, and strengthen the strategic role and accountability of the Local Service Board, which is the heart of local multi-agency working. The guidance sets out the unique role of Local Service Boards in achieving the Welsh Government's priorities for service delivery by bringing together public service leaders to plan, work, deliver and improve. It states that to make a difference, partnership must mean working, not just talking, together. Its focus must be on a shared agenda of better outcomes, placing the emphasis on priorities, pace and performance. The consultation closes on 30 March 2012. (10 January 2012)
If you wish to discuss any of the items noted in this section please contact Bethan Evans.
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StandardsACSeS: Standards – Sanctions and independent persons: following concerns that existing co-opted independent members of Standards Committees could not be the new Independent Persons under s.28 of the Localism Act 2011, ACSeS sought advice from Clive Sheldon QC. He confirms our reading of the legislation that former independent members are not permitted to serve as independent persons within a period of five years from their previous service. His Opinion is annexed to this press release. The Opinion also discusses the nature and scope of any action lawfully available to authorities under the new standards regime in respect of those members found to have failed to comply with the authority’s code of conduct, as the 2011 Act is silent on this issue. (16 January 2012)
If you wish to discuss any of the items noted in this section please contact Peter Keith-Lucas.
Bevan Brittan's Local Government Training Programme
Bevan Brittan has developed a well-recognised programme of training designed to assist local authorities in successfully implementing legal change. Led by key members of our local authority team, each session will clearly explain the key aspects of the law and the implications for local government. Using case studies and carefully selected complementary speakers, they will assist attendees in realising the full benefits of implementation and the dangerous pitfalls in failure to act.Forthcoming seminars in 2012 include:
- 31 January (Birmingham): The Localism Act 2011
- 21 March (London): Income generation - charging into trading (organised by LGG)
For a list of all Bevan Brittan seminars see the Events page on our website. If you wish to attend an LGG seminar that we are hosting at our offices, please book with LGG direct.
