Local Government Lawyer Magazine Issue 25

LOCAL GOVERNMENT LAWYER ISSUE 25

THIS ISSUE’S FEATURED ARTICLES:

PUBLIC TO PUBLIC COLLABORATION AND THE PROCUREMENT RULES

SWEET & MAXWELL

INTERVIEW WITH JULIE ROBERTS FROM ESSEX LEGAL SERVICES PUBLIC LAW PARTNERSHIP CONFERENCE COVERAGE

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WELCOME

Welcome to the latest issue of Local Government Magazine from Thomson Reuters.

In this issue Kirsten Maslen, Practical Law Public Sector Editor, writes an article about public to public collaboration and procurement rules. We hear from Julie Roberts from Essex Legal Services.

Julie, who leads the Property Legal Team, discusses her background, current role and the Property Centre of Excellence within Essex Legal Services.

LOCAL GOVERNMENT LAWYER ISSUE 25

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IN THIS ISSUE:

04 18

There’s coverage of the Public Law Partnership conference which took place earlier in the summer and included a talk from Victoria McNeill, Practice Director at nplaw.

We also feature some of the new Lawyers in Local Government Special Activity Areas leads. Nicola Hartley, Eleanor Hoggart Sam McGinty and Gurbinder Sangha list the key issues facing their areas over the next 12 months.

Professor Sue Arrowsmith is our featured author for this issue. Sue is author of the highly anticipated 3rd edition of the Law of Public and Utilities Procurement. The first volume is due to publish this September.

If you need any further information about the products and services referred to in this issue, you’ll find a list of account managers with contact details on page 34.

Enjoy the issue.

28 04 LOCAL GOVERNMENT NEWS 08 ARTICLE: PUBLIC TO PUBLIC COLLABORATION AND THE PROCUREMENT RULES 16 INTERVIEW: JULIE ROBERTS 18 UPDATE FROM LAWTEL AND WESTLAW UK 20 CONFERENCE COVERAGE: PUBLIC LAW PARTNERSHIP JUNE 2014 24 LAWYERS IN LOCAL GOVERNMENT S.A.A NATIONAL LEADS Q&A 26 BOOKSHOP 28 LOCAL GOVERNMENT LAW AT YOUR FINGER TIPS 30 PROFILE: PROFESSOR SUE ARROWSMITH 34 YOUR THOMSON REUTERS ACCOUNT MANAGERS CONTACTS LEGAL SOLUTIONS FROM THOMSON REUTERS legal-solutions.co.uk

Jonathan Chilton Editor

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LOC ALG OVL AW YER .CO.UK

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NEWS

CARE HOME INSPECTIONS

HIT RECORD HIGH

AS CQC RAMPS UP ACTIVITY AHEAD OF RAFT OF NEW POWERS

The Care Quality Commission (CQC) undertook a record high of 21,126 care home inspections in the past year* (see graph) as it ramped up its enforcement activity ahead of a raft of new powers given to it in the Care Act

Care home inspections have more than quadrupled over the last three years, following intense political and public pressure in the wake of high-profile care home scandals.

These scandals have prompted the Government to hand the CQC extensive new powers to sanction failing care homes through the Care Act 2014, which received Royal Assent in May. These include the power to begin immediate prosecutions without notice of care provider in cases of serious failures of care and the ability to make ‘publicity orders’, which require the failing care provider to publicise the conviction or other sanction made against it. It can also ban owners and managers of failing homes from operating within the sector.

Tim Spencer-Lane, a lawyer and author of the Care Act Manual, publishing in August by Thomson Reuters, says that dealing with the CQC’s new powers granted by the Act will be a substantial challenge to care homes and their legal advisers. “ The CQC is now a completely different animal – one with a lot more teeth. Care homes need to be prepared to deal with an organisation that now has the power to prosecute them without notice… providers have to be sure that they are meeting their legal responsibilities or face action under the new Act”

Care home inspections hit record high - number per year

TWEET TWEET! Be sure to follow us at @localgovlawyer and read daily updates about local government news of interest to you.

And if you’re also a Westlaw UK, Practical Law or Lawtel subscriber you can follow us at @WestlawUK @PracticalLawUK @LawtelUK for news on product enhancement and general legal happenings.

20,000 15,000 10,000

20,192

21,126

12,724

5,000 5,178 0 2010/11

2011/12

2012/13

2013/14

* Year ending March 31 2014. Source: Care Quality Commission

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LO C A L G OVE R N M E N T L AW YE R

REUTERS/Mariana Bazo

The CQC has also been given the power to monitor the finances of large care home providers, and inform local authorities if they are in financial difficulty. This is aimed at preventing a repeat of the Southern Cross care homes insolvency.

The FTSE 350 group, which owned 750 care homes, went into administration in 2011 after breaching its banking covenants. “ The CQC is staffed by professionals with expertise in the health and social care sector, not accountants,” says Spencer-Lane.

“In order to handle its new role, the CQC will have to recruit a team of professionals with skills and experience in this type of work, or outsource the work to specialists.”

PRACTICAL LAW CASE PAGES FROM LEGAL UPDATES You can now access Practical Law case pages from legal updates. Case pages provide at-a-glance information about a case and are used in Practical Law maintained resources.

If you click on a hyper linked reference to a case, a pop-up box will appear. You will be given the option to visit the case page where you can access the case report on Westlaw UK, find key information about that case and see related Practical Law resources.

“ That means the future level of Government funding for the organisation is vital – without the money to build its financial monitoring capabilities, there is a risk that these reforms might not work.”

CARE ACT MANUAL, publishing September 2014 from Sweet & Maxwell.

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NEWS

WESTLAW UK NEW BOOKS & LOOSELEAFS Since our last update, Westlaw UK has continued our digitisation project publishing a further 22 Sweet & Maxwell titles and taking our commentary library to over 180 titles in total.

Titles recently added include: • Archbold Magistrates’ Courts Criminal Practice • Building Contract Disputes: Practice and Precedents • Butler and Merkin’s Reinsurance Law • Carver on Bills of Lading • Civil Costs • Colinvaux and Merkin’s Insurance Contract Law • Commercial Leases in Scotland (W.Green) • Company Precedents • Corporate Criminal Liability • Employment Precedents & Company Policy Documents • Goode on Legal Problems of Credit and Security

• Handbook of ICC Arbitration, Commentary, Precedents, Materials • Heywood & Massey: Court of Protection Practice • Injunctions • The Law of Nuclear Energy • Lowndes & Rudolf: The Law of General Average and The York-Antwerp Rules • Practical Commercial Precedents • Practical Lending and Security Precedents • Precedents for the Conveyancer • Privilege • Probate Practice Manual • Weinberg & Blank on Takeovers and Mergers

To make sure you keep up to date with what titles go live when, you can follow Westlaw UK on Twitter @WestlawUK where we give live updates as new books and looseleafs are launched online. Check out the Books & Looseleafs library section westlaw.co.uk/inside-westlaw-uk/books-looseleafs/books-library, which has all the titles currently live and those launching throughout 2014. The library also includes cover photos and pre-lims, which are court ready!

For more information on any of the enhancements above visit westlaw.co.uk or contact our Customer Service team at customer.service@westlaw.co.uk or on 0800 028 2200

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PERMISSIONS TO APPEAL Lawtel have recently launched a major enhancement to Permissions to Appeal, providing blanket coverage of Permissions to Appeal (PTA) judgments from the Court of Appeal Civil Division.

The new Permissions to Appeal content can be found within the Cases area of Lawtel and accessed via the Cases drop down menu.

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REUTERS/Luke Macgregor

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PUBLIC TO PUBLIC

COLLABORATION

AND THE PROCUREMENT RULES

BY KIRSTEN MASLEN INTRODUCTION Local authorities regularly enter into collaborative arrangements with each other and with other public bodies.

The general rule is that public contracts between contracting authorities are subject to the procurement rules (Commission v Spain [2005] ECR I-139). However, there are two exceptions: • The in-house, or Teckal, exception.

• The cooperation, or Hamburg, exception.

How does a local authority know when it can rely on these exceptions, and when it must competitively tender the opportunity?

What factors will make the difference?

TECKAL DECONSTRUCTED: THE IN-HOUSE EXEMPTION The leading case on public to public contracts and their exemption from the procurement rules is Teckal Srl v Comune di Viano and Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia Case C-107/98 (Teckal).

Teckal confirmed that contracts awarded by a contracting authority to a legally distinct person will fall within the procurement regime unless the contracting authority: • Exercises over the person concerned a control which is similar to that which it exercises over its own departments.

• That person carries out the essential part of its activities with the controlling local authority or authorities.

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The rationale behind the exemption is that the procurement rules do not apply when a contracting authority chooses to perform tasks using its own administrative, technical and other internal resources, so neither should they apply when the other party is, to all intents and purposes, another part of that contracting authority, albeit one with a separate legal personality.

Subsequent case law has expanded on this judgment to give more clarity on the exemption, as summarised in the following table.

THE QUESTION OF PRIVATE PARTICIPATION CASE AND FACTS

DECISION

IMPLICATIONS

A local authority entered into negotiations in respect of a waste disposal arrangements with a company in which it held a 75.1% shareholding.

The procurement rules applied.

The entity must be wholly owned by the contracting authority(ies) concerned.

C-26/03 Stadt Halle V TREA Leuna, judgment of 11 January 2005.

A local authority made a direct award of a waste management contract of unlimited duration to a wholly-owned company. However, in the same year, and before the company was operational, 49% of its shareholding was transferred to a private undertaking.

REUTERS/Ahmad Masood

Even a minority private shareholding excludes the possibility that a contracting authority can exercise control over the company to the same extent as it does over its internal departments.

The procurement rules applied.

The reliance on the Teckal exception was a device to conceal the award of a public contract to a semi-public undertaking, giving it an advantage over its competitors.

Teckal should not be used as a device to avoid the procurement rules.

If the contracting authority does intend to divest itself of all or part of its ownership, that transaction will likely trigger the requirement for its contract to be competitively re-tendered.

C-29/04 Commission v Republic of Austria, judgment of 10 November 2005.

A local authority became a minority shareholder in a company owned by other contracting authorities.

There were no other owners, however, the company’s statutes allowed it to issue preferential shares to the public, other economic operators or employees. However, at the time the contract was awarded, no such private capital had entered the company.

The procurement rules did not apply.

The ECJ noted the fact that a company could sell its shares at any time to private third parties should not cause the determination of its status to be kept in suspense indefinitely; its ability to open its capital to private investors should only be taken into account if there is a real prospect of this happening in the short term.

If a contract is awarded without competition and then private capital shareholders are then admitted during the term of the contract, the contract would have to be competitively tendered.

C-573/07- Sea Srl v Comune di Ponte Nossa, judgment of 10 September 2009.

(For a full list of cases in this area, see Practical Law’s Public procurement case tracker at http://uk.practicallaw.com/2-505-0649.)

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PUBLIC TO PUBLIC COLLABORATION MEANING OF CONTROL CASE AND FACTS

DECISION

IMPLICATIONS

A local authority joined an inter-municipality cooperative society (Brutélé) and entrusted it with the management of its cable television network.

There was no breach of the procurement rules.

Control can be exercised jointly between a number of public authorities.

Coditel Brabant SA v Commune d’Uccle (Case C-324/07)

This was a concession contract and as such should be advertised if it was of cross border interest. However, no such advertising was required as the control principle of Teckal was satisfied: • Control may be exercised jointly with other public authorites.

• Brutélé carried out the essential part of its activities with its members (even though it was paid by members of the network, not the municipalities).

Unlike in the Correos decision (below), which did not concern the award of a concession contract, the fact that Brutélé sold services to the public at large did not preclude it from satisfying the Teckal control test.

• It was not open to private members.

• Its governing council and general assembly were only made up of members of member municipalities.

• Its objects were the pursuit of the municipal interest and it did not have a commercial character.

A local authority directly awarded a contract for fuel and heating installations to a subsidiary of a company in which the local authority had a 99.98% shareholding.

C-340/04, Carbotermo Spa and Consorzio Alisei v Comune di Busto Arsizio and AGESP SpA, judgment of 11 May 2006.

The procurement rules applied.

The local authority did not exercise the requisite degree of control over the company because: • The board of directors had the broadest possible management powers.

• The local authority had not reserved any control or specific voting powers.

• The local authority’s control was limited to that conferred by company law.

A majority shareholding is not enough to satisfy the requirement of control.

The judgment suggests that even where a local authority owns 100% of the shareholding in a company, without any additional controls than those afforded by company law, it may still fail to satisfy the control test.

• Its control was exercised indirectly through its shareholding in the parent company.

The value of the shareholding may be indicative of the level of control but it is not determinative.

A group of local authorities directly awarded contracts for insurance to a company they owned and had established (LAML).

Brent London Borough Council and others v Risk Management Partners Ltd [2011] UKSC 7.

This judgment goes beyond that of Carbotermo, above, and takes a purposive approach to the issue.

In this context it is difficult to know • The participating authorities appointed all how far the assessment of LAML’s but two of a maximum 11 of LAML’s directors. constitution is relevant when • No board meeting would be quorate unless considering issues of control. the majority of directors representing members were present.

The procurement rules did not apply.

The control test required by the Teckal exemption was satisfied because:

• The board was subject to direction by the participating members so long as they achieved a 75% majority. 100% of the voting rights at general meetings lay with the participating members.

• LAML could only offer such insurance as that agreed at the general meetings.

• No private interests were involved.

The fact that when a claim was considered, the claimant authority was excluded from discussions, did not mean the control test was not met; control could be exercised collectively.

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PUBLIC TO PUBLIC COLLABORATION

CASE AND FACTS

DECISION

IMPLICATIONS

C-573/07- Sea Srl v Comune di Ponte Nossa, judgment of 10 September 2009.

To satisfy the control test, the contracting authority’s control must be sufficient to give the contracting authority decisive influence over both the strategic objectives and significant decisions of the company.

In this case it was relevant that:

The company’s activities should be limited to the territory of its shareholder authorities and be carried out essentially for their benefit.

• The company’s activities were limited to the geographical areas of its shareholder municipalities.

The company’s constitution should provide for governance by representatives of the shareholder authorities.

• Its objects were to manage public services for the municipalities.

• It could only perform services for private individuals when not contrary to its objects.

• The company’s governance structure appeared to allow the municipalities to exercise conclusive influence over its strategic objectives and significant decisions, for example its decisionmaking committees were made up of representatives of the municipalities.

A trade organisation challenged a state owned company (Tragsa) for abusing its dominant position and specifically avoiding the procurement rules. The company carried out rural development and environmental law services on behalf of the Spanish state and four autonomous communities.

C-295/05- Asociación Nacional de Empresas Forestales (Asemfo) v Transformación Agraria SA (tragsa), Administración del Estado, judgment of 19 April 2007.

A local authority awarded a contract for the management, maintenance and development of its in-house IT services to a company in which it had an interest.

C-371/05 Commission v Italy, judgment of 17 July 2008.

There was no breach of procurement law.

The relationship between the company and its owners did not seem to be contractual as Tragsa was required to carry out orders of the public authorities and was not free to set tariffs.

Tragsa’s relationship with the public bodies was internal, dependent and subordinate.

It was irrelevant that Tragsa was owned by more than one public authority.

Tragsa carried out 55% of its activities for the State and 35% for the autonomous communities. It therefore carried out the essential part of its activities with the public bodies and authorities that controlled it.

No breach of procurement rules.

It was irrelevant that the company was partly owned by two companies as they were also municipal companies.

The degree of control exercised by the owner authorities can also be indicated through the arrangements for carrying out work, as well as in the constitution of the company.

However, this case falls outside the Teckal exemption in that the arrangement between the parties did not amount to a public contract in the first place. It was therefore not caught by the procurement rules so no exemption was required.

The company need not be owned by public bodies as long as any company owner is also a contracting authority.

The controlling authority exercised decisive influence over both the strategic objectives and significant decisions of the company through its power to appoint directors and a local government officer with the authority to guide and control the company’s activities.

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PUBLIC TO PUBLIC COLLABORATION MEANING OF “ESSENTIAL PART OF ITS ACTIVITIES” CASE AND FACTS

DECISION

IMPLICATIONS

A Spanish government department had entered into an agreement with a wholly owned company (Correos) to provide certain reserved and nonreserved postal services.

The fact that Correos was obliged to accept the agreement did not mean it was not a contract. There would only be no contract if the agreement were a unilateral administrative measure solely creating obligations for Correos. It was for the national court to decide whether this was the case, taking into account Correos’s ability to negotiate with the Ministry as to the content of the services and the tariffs and whether it can give notice to terminate the agreement in respect of non-reserved services.

When considering control, it may be relevant to consider the extent to which the contractor can negotiate the contract.

C-220/06- Asociación Profesional de Empresas de Reparto y Manipulado de Correspondencia v Administración del Estado, judgment of 18 December 2007.

If the contractor receives the majority of its payments from members of the public at large, it will not satisfy the second limb of the Teckal test, that is, it carries out the “essential part of its activities” for the controlling authorities.

Correos did not satisfy the second Teckal condition in that it did not carry out the essential part of its activities with the Ministry or with public authorities in general.

Rather, it provided postal services to an unspecified number of customers.

TECKAL AS CODIFIED IN THE NEW PROCUREMENT DIRECTIVE The Teckal principles have been codified in Article 12 of the new directive (Directive 2014/24/EU on public procurement and repealing Directive 2004/18/EC).

Article 12 (1): A public contract awarded by a contracting authority to a legal person governed by private or public law shall fall outside the scope of this Directive where all of the following conditions are fulfilled: (a) the contracting authority exercises over the legal person concerned a control which is similar to that which it exercises over its own departments; (b) more than 80 % of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or by other legal persons controlled by that contracting authority; and (c) there is no direct private capital participation in the controlled legal person with the exception of non- controlling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.

A contracting authority will exercise the required level of control “where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. Such control may also be exercised by another legal person, which is itself controlled in the same way by the contracting authority.”

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Control may be exercised jointly with other contracting authorities.

Article 12 also permits “reverse Teckal” and “horizontal Teckal”, i.e. where the controlled company (which is a contracting authority in its own right) awards contracts to its parent and any other company controlled by the same parent, as long as there is no direct private capital participation in the legal person being awarded the public contract.

Some important distinctions can be drawn between the case law and the wording of the Directive.

Firstly, the Directive does not say that any private participation in the controlled legal person will prevent reliance on the exemption; only direct capital participation will. In other words, indirect capital participation is acceptable, as is non-controlling and non-blocking forms of private capital participation required by national legislative provisions which do not exert a decisive influence on the controlled legal person. According to paragraph 32 of the Preamble, the Commission has in mind public bodies with compulsory membership, such as organisations responsible for the management or exercise of certain public services in which specific private economic operators are required to participate by national law.

Secondly, the activity criterion is clarified to require that the controlled legal person carries out 80% of the activities for the controlling authority(ies), down from the 90% proposed by the Commission. There is also no requirement to consider activities in anything other than quantitative terms.

Control may also be exercised within a group, for example, mother to grand-daughter, which broadens the judgment in Carbotermo that the presence of an intervening company in the chain diluted the control exercised by the parent.

Another important clarification about control is that while “the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities. Individual representatives may represent several or all of the participating contracting authorities” which rather dilutes the requirement that control be genuinely joint.

HAMBURG DECONSTRUCTED: PUBLIC TO PUBLIC COOPERATION A second exception to the procurement rules applicable to arrangements between public bodies was established in Commission v Germany (C-480/06) in which the ECJ held that a contract between four local authorities and the City of Hamburg fell outside the procurement rules.

Four municipal authorities agreed to send their waste to the City of Hamburg to enable it to procure a cost effective contract for the building and operation of a waste treatment facility.

The arrangement between the four authorities and Hamburg did not bear the hallmarks of a commercial arrangement: • The fees charged by Hamburg were passed on to the operator of the waste treatment facility.

• Hamburg did not offer any guarantees as to the operation of the facility. If the facility ceased to operate, Hamburg would try to secure replacement capacity, though its own waste would take priority, and only if it had surplus capacity in other facilities.

• If the facility exceeded capacity, the four authorities agreed to reduce the quantities of waste delivered.

• The four municipalities made unused landfill available to Hamburg.

The Teckal exception did not apply because none of the four authorities exercised control over Hamburg.

However, the Commission conceded it would have applied had the contracts been conferred on a company owned by the authorities collectively.

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PUBLIC TO PUBLIC COLLABORATION

The ECJ ruled that: • EU law does not require public authorities to use any particular legal form when jointly carrying out their public tasks.

• Such cooperation between public authorities does not undermine the procurement rules where the implementation of the cooperation (in this case, the contract) is governed solely by considerations and requirements relating to the pursuit of objectives in the public interest.

• No private undertaking is placed in a position of advantage vis-à-vis competitors.

The following cases have shown the limits of the Hamburg decision.

CASE AND FACTS

DECISION

IMPLICATIONS

A local health unit directly awarded a contract to a university for the study of seismic vulnerability of hospital buildings in light of Italian regulations on the safety of structures and of strategic buildings.

The contract breached the procurement rules because: • A lack of profit does not mean the contract is not for pecuniary interest (and is therefore capable of classification as a public contract).

The case illustrates the limits of Hamburg and the distinction that must be drawn between a contracting authority acting purely in its public capacity and as an economic operator.

The contract price did not exceed the costs incurred.

• The tasks under the contract were activities usually carried out by engineers and architects and did not constitute academic research. The contract did not ensure the implementation of a public task which both parties had to perform.

It is also important to note that a lack of profit alone will not render what would otherwise be considered as a public contract into a cooperation agreement falling outside the procurement rules.

The draft contract would breach the procurement rules because the contract was a public contract for Part A services (the lack of profit was irrelevant).

The decision is strange in that it states that one of the factors that rendered the arrangement subject to the procurement rules was the fact that Stadt Düren was able to use third party providers to carry out the work. In fact, the cleaning was to be carried out by a company owned

by Stadt Düren. If this was a Teckal company, and Teckal companies are considered, in procurement terms, to be one and the same as their controlling authority, this part of the ruling is confusing.

Azienda Sanitaria Locale de Lecce v Ordine degli Ingegneri della Provincia di Lecce and others (Case C-159/11).

An association of local authorities, Kreis Düren (which included Stadt Düren), drew up a draft contract with Stadt Düren for cleaning municipal buildings located in Stadt Düren’s territory. The contract provided for Stadt Düren to recover the costs incurred.

The actual cleaning was to be carried out by a company owned by Stadt Düren.

C-386/11 - Piepenbrock Dienstleistungen GmbH & Co. KG v Kreis Düren

The Teckal exception did not apply (Kreis Düren did not control Stadt Düren).

The Hamburg exception did not apply because: • The draft contract did not appear to establish co-operation between the contracting authorities with a view to carrying out a public task both of them had to perform.

• The contract authorises the use of a third party, which may advantage that third party over competitors.

The limits of the Hamburg decision became apparent in this case, while leaving some unanswered questions about the distinctions between the arrangements in Hamburg and this case.

The key distinction in Hamburg seems to have been that the tasks were public tasks (waste disposal) and that there was no market distortion because the combined requirement for waste disposal was competitively tendered, and therefore no economic operator was disadvantaged because (but for the combined scale of the requirement, which may have squeezed out smaller operators) any operator could have bid for Hamburg’s contract.

If this is right, would the court have found differently if Hamburg had arranged to dispose of the four authorities’ waste using its own facilities without carrying out a further process? Would it not, in those circumstances, have been acting as an economic operator itself?

The conclusions that can be drawn from Hamburg and Stadt Düren are therefore that: • The exception may be limited to statutory functions.

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PUBLIC TO PUBLIC COLLABORATION

• Lack of profit does not exclude an arrangement which otherwise looks like a contract from the procurement rules.

• Any arrangement by which the combined services are delivered by a third party will fall outside the exemption unless its was subject to a competitive tender process. Shared services arrangements in which one party is acting as an economic operator, for example, as with the “take-over” (rather than “merger”) model, are likely to fall within the procurement rules.

HAMBURG AS CODIFIED IN THE NEW PROCUREMENT DIRECTIVE The principles of Hamburg have been codified in Article 12(4) of the new directive.

Article 12(4): A contract concluded exclusively between two or more contracting authorities shall fall outside the scope of this Directive where all of the following conditions are fulfilled: (a) the contract establishes or implements a co-operation between the participating contracting authorities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common; (b) the implementation of that co-operation is governed solely by considerations relating to the public interest; and (c) the participating contracting authorities perform on the open market less than 20 % of the activities concerned by the co-operation.

Article12(5) provides that turnover will be calculated using the average total turnover, or an appropriate alternative activity-based measure such as costs incurred by the relevant legal person or contracting authority with respect to services, supplies and works for the three years preceding the contract award.

The same questions arise from the wording of Article 12(4) as from the case law, in particular, what is meant by “public services”? The preamble does not seem to limit this exemption to the performance of statutory functions as it states “ Such co-operation might cover all types of activities related to the performance of services and responsibilities assigned to or assumed by the participating authorities, such as mandatory or voluntary tasks of local or regional authorities or services conferred upon specific bodies by public law. The services provided by the various participating authorities need not necessarily be identical; they might also be complementary (paragraph 33, Preamble).”

This suggests the type of services themselves are not important; the nature of the arrangement is key.

That arrangement must be governed solely by considerations relating to the public interest: “ The co-operation should be based on a co-operative concept. Such cooperation does not require all participating authorities to assume the performance of main contractual obligations, as long as there are commitments to contribute towards the co-operative performance of the public service in question.

In addition, the implementation of the co-operation, including any financial transfers between the participating contracting authorities, should be governed solely by considerations relating to the public interest (paragraph 33, Preamble).”

Two new elements build on the existing case law: • The exemption extends to contracting authorities with private capital participation.

• The participating contracting authorities must perform on the open market less than 20 % of the activities concerned by the co-operation.

Given the case law, it will be interesting to see how many arrangements can safely rely on this exemption.

For example, notwithstanding that an arrangement may be governed solely by considerations in the public interest, what impact does the existence of a market for the service have? Does the exemption apply where there exists a private market for the services in question and the provider authority does not go on to competitively tender the combined services? What key fact would have had to have been different in the Stadt Düren case to enable it to rely on the exemption? Only time will tell…

LOC ALG OVL AW YER .CO.UK

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INTERVIEW WITH JULIE ROBERTS

This month LOCAL GOVERNMENT LAWYER speaks with JULIE ROBERTS, Property Legal Team Lead at Essex Legal Services.

Julie discusses her background, current role, and the Property Centre of Excellence within Essex Legal Services.

WHAT ARE YOUR CURRENT RESPONSIBILITIES WITHIN ESSEX LEGAL SERVICES? I am the Section Leader of the Property Legal Team. There are 11 property lawyers within the team, including me. I have my own fee-earning caseload of various types of transactions, allocate all the property work that comes into our team, supervise the lawyers within the team (which means regular one-to-one meetings) and also deal with any general issues, queries or questions that arise. On top of this, I lead on the property side for the Property Centre of Excellence.

WHAT WAS YOUR PATH INTO THE LEGAL SECTOR AND HOW DID YOU COME TO BE SECTION LEADER? I came to the law in 1989. I didn’t go straight in to it. I started off in banking, started my own business and then wanted to develop a new career; I was lucky enough to get a job as a trainee legal executive at the London Borough of Havering. I qualified as a legal executive whilst I was at LBH, was involved with various types of legal work and ended up specialising in property.

Then in 2001 I came to Essex County Council. I actually came in as the manager of the Paralegal Team. It was a fairly new team that had been set up, and dealt with all sorts of work, mainly social services and childcare law. I did that for 18 months but really missed the fee-earning property work. An opportunity came up within the Property Team so I moved there as a property lawyer.

In 2011 I applied for the job of Property Section Leader and got it, and I have been doing that ever since.

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ARE THE SKILLS THAT YOU USE IN YOUR MANAGERIAL ROLE DIFFERENT TO THOSE YOU USED IN YOUR PREVIOUS ROLES? Yes, I think I have called on some of the skills that I picked up whilst I was manager of the Paralegal Team, but the Section Leader role is very, very different to the role of pure fee-earner; you are supervising so many people, dealing with a huge number of queries and questions—it is also much more of a mentoring role.

COULD YOU EXPLAIN A LITTLE BIT ABOUT THE PROPERTY CENTRE OF EXCELLENCE AND YOUR INVOLVEMENT WITH IT? The Property Centre of Excellence was an idea of our Director for Legal Services, Philip Thomson. The aim was to form a more efficient, effective legal team by calling on a diverse set of people with varying skills, thus increasing efficiency.

Property lawyers across Essex County Council, Southend Borough Council and Castle Point Borough Council (about 17 people in total), have become “a virtual team”—we can pick up any work that comes into the Centre of Excellence. My role includes monitoring the work that comes in and allocating it as necessary across the Centre of Excellence. The benefit is that we have a larger pool of property lawyers available to carry out the work, and a wider pool of skills.

The PCE had a soft launch fairly recently, so we are aiming to build it up and gradually start feeding more work into it.

Currently the scheme only applies to property law, but in the future there is talk of rolling it out into planning, employment and litigation.

PRESUMABLY THIS KIND OF ARRANGEMENT COULD WELL BE A LIFELINE FOR SMALLER AUTHORITIES. Absolutely, because some authorities may have, say, only two lawyers. With the best will in the world, if anything urgent needs to be dealt with, it is sometimes just impossible, because there just isn’t the flexibility to be able to take on such work at short notice. So a scheme similar to the PCE could provide a solution, rather than work going elsewhere—to private practice for example.

REUTERS/Amr Abdallah Dalsh

COULD YOU TELL US MORE ABOUT YOUR WORK FOR EXTERNAL CLIENTS? As a local authority we can work for other public bodies, so we work for other local authorities as well as parish councils, academies, foundation schools, the Police and Crime Commissioner for Essex and the Fire & Rescue Authority, for example—we do a lot of work for them, and gradually we find that we get repeat business, and it builds up.

It is quite an important part of what we do in terms of revenue and we are building up this work. It is also interesting for us because it can involve a different area of work and gives us a different perspective.

IS THERE SUCH A THING AS A TYPICAL WORKING DAY FOR YOU? No, each day is very different. Some days I am out most of the time at meetings and other days I am in the office all day.

Some days can be filled with fee-earning tasks, some could mainly consist of managerial duties. You can have the whole day planned out and then one email will change everything!

WHAT ADVICE WOULD YOU WOULD GIVE TO A LOCAL AUTHORITY LAWYER, OR PERHAPS A NEWLY QUALIFIED LAWYER, APPROACHING YOUR FIELD OF PRACTICE FOR THE FIRST TIME? I think you need to be adaptable; a problem-solver. This job is like a puzzle sometimes, because we find that things very rarely run to the norm, and there are often unexpected complications.

So, it takes a bit of creative thought.

WHAT DO YOU EXPECT TO BE THE BIG DEVELOPMENTS IN THE FUTURE FOR YOUR AREA? I think Essex County Council is going to become more of a commissioning local authority, so it will be commissioning other organisations to carry out its services. This would present challenges to property lawyers in that more and more services will no longer be carried out by Essex County Council employees.

If that happens, how will we deal with various property issues?

It could be leasing or licensing land to other bodies, or making disposals of land, or even acquiring more premises, so those changes I think will have a knock-on effect for us.

COULD YOU SHARE A CAREER HIGHLIGHT WITH US? Actually being appointed to this post was quite a highlight.

I am a Chartered Legal Executive and I feel proud to have demonstrated that legal executives can be promoted and appointed to these positions of responsibility.

THIS INTERVIEW WAS FIRST PUBLISHED IN THE JUNE ISSUE OF THE PLP NEWSLETTER. FOR MORE INFORMATION about Public Law Partnership visit www.publiclawpartnership.co.uk or contact PLP Programme Manager, Enid Allen, at enquiries@publiclawpartnership.co.uk

LOC ALG OVL AW YER .CO.UK

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UPDATE FROM LAWTEL AND WESTLAW UK

REUTERS/Mike Blake

CASE SUMMARY 1 R (on the application of ZYN) v WALSALL METROPOLITAN BOROUGH COUNCIL (2014) [2014] EWHC 1918 (Admin) In Zyn, the claimant (Z) applied for judicial review of the defendant local authority’s decision to charge her the full cost of social care services. Z was severely disabled.

The local authority provided community care services. In 2003 Z had received £550,000 in settlement of a clinical negligence claim. The Court of Protection had appointed a receiver in 2002 to manage Z’s affairs. The Mental Capacity Act 2005 replaced that court with a new Court of Protection in 2007. An order was made in 2008 changing the receiver’s functions to those of a deputy under the 2005 Act. The order allowed Z’s deputy to withdraw up to £50,000 per year from Z’s funds without obtaining the Court of Protection’s approval. Under the local authority’s policy, service users with over £23,250 in capital and savings paid the full cost of their care. The Income Support (General) Regulations 1987 Sch.10 para.44 stated that certain amounts were to be disregarded from assessments, including sums

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“administered on behalf of a person by ... the Court of Protection” and which “could only be disposed of by order or direction of any such court”. Z submitted that the money from the settlement should be disregarded under Sch.10 para.44. The local authority argued that the “Court of Protection” in para.44 referred to the old court, not the new one. It further argued that the deputy administered property on Z’s behalf rather than on the court’s, and since Z’s deputy could dispose of £50,000 without a court order, that sum did not fall within para.44(1).

Leggatt J. held that when para.44 was introduced, Parliament had enacted the 2005 Act, and contemplated the old Court of Protection being replaced.

There was no reason to attribute to Parliament an intention that when the 2005 Act came into force there should be a change in policy on disregarding capital. It could be supposed that Parliament intended para.44 to remain applicable to capital funds administered by the new Court of Protection. Ambiguity in para.44 should be resolved by construing it in accordance with Parliament’s presumed understanding of its meaning and treating it as having current effect.

“Court of Protection” therefore meant the body of that name in existence at the time of the means assessment.

The differences between a Mental Health Act 1983 receiver and a 2005 Act deputy were not material in the instant case.

In administering property and affairs, a deputy exercised powers delegated by the court. Accordingly, capital managed by a deputy appointed by the Court of Protection under the 2005 Act was “administered on behalf of a person by the Court of Protection” within para.44(1)(a).

A rational policymaker could decide that capital from a personal injury settlement, and managed on behalf of a person by the Court of Protection or a deputy, should be brought into account in assessing ability to pay for care. However, no rational policymaker could make a local authority’s right to charge for the cost of care services dependent on the amount a deputy was permitted to withdraw without prior court approval. The only rational interpretation of the para.44(1)(b) exception was one which treated the whole of Z’s capital as falling within its scope, even after an order permitting a deputy to withdraw money. The local authority’s policy on charging for the cost of social care services was therefore unlawful insofar as it took account of any capital from Z’s settlement.

CASE SUMMARY 2 (1) GURMOKH SINGH SANGER (2) JAGNINDER SINGH SANGER v NEWHAM LONDON BOROUGH COUNCIL (2014) [2014] EWHC 1922 (Admin) In Sanger, the appellants (S) appealed against their conviction for breaching a planning enforcement notice contrary to the Town and Country Planning Act 1990 s.179(2). S owned a property which, before 2006, they had converted into flats without planning permission. The local authority served an enforcement notice requiring compliance by July 2008. S did not comply.

Summonses for breach were issued, specifying July 27, 2010 as the date of the offence. S were convicted. On appeal, they contended that defences were available, and the prosecution was an abuse of process because of the local authority’s failures to make proper disclosure and because the limitation period had expired when the notice was served. The Crown Court accepted that S had probably been unaware of the notice until after July 2008, but dismissed their appeal. The issues were whether: the date for determining the availability of a s.179(7) defence was

the date of the offence specified in the summons, or the date for compliance with the enforcement notice; the local authority had to prove receipt of the notice; a notice was properly registered under s.188 even if the entry did not contain all particulars required by the Town and Country Planning (General Development Procedure) Order 1995 art.26; the prosecution was an abuse of process on the disclosure point; S could rely on s.171(B)(2) on the basis of the limitation point; a stay on the basis of the limitation point would be contrary to legislative intent.

The Divisional Court held that the date for determining the availability of a s.179(7) defence was the date of the offence specified in the summons. The s.179(2) offence was not complete until the date for compliance with the enforcement notice had passed. However, after that date it was a continuing offence. The legislation’s primary objective was to ensure compliance with planning controls. If compliance was secured by the time of the prosecution, there was no reason to criminalise the conduct. A defendant learning of the notice after the date of compliance but before charge could still end the breach, ensuring that the s.179(2) offence could not be made out. Service of the notice had been

effected in accordance with s.329, having been sent by recorded delivery to S’s last known place of abode. The local authority did not have to prove its receipt. Since the Crown Court had correctly disposed of the s.179(7) defence, the register question did not arise. In any event, an entry not setting out all the particulars required could still be valid. Section 179(7) was intended to protect somebody who had not been served with the notice and could not ascertain its existence by checking the register.

Anyone checking the register in the instant case would have been alerted to the notice.

In rejecting the abuse of process argument on the disclosure point, the Crown Court had properly concluded that S could have a fair trial and that the integrity of the criminal justice system would not be damaged.

On the limitation issue, S had had a potential appeal to the secretary of state under s.174(2)(d). Since they had not pursued it, s.285(1) prevented them advancing it in the criminal proceedings save where the conditions in s.285(2) were met. The Crown Court had concluded, on the evidence, that those conditions were not met. The limitation point could not therefore support an abuse of process argument. It could not be a basis for a stay since it did not affect the fairness of the trial or the integrity of the criminal justice process.

WESTLAW UK AND LAWTEL: 2014 No. 1794 (W. 187)

SI 2014/1829

SSI 2014/200

SOCIAL CARE, LOCAL GOVERNMENT WALES

HOUSING, LOCAL GOVERNMENT ENGLAND

LOCAL GOVERNMENT SCOTTISH

The Social Services Complaints Procedure (Wales) Regulations 2014

The Housing Renewal Grants (Amendment) (England) Regulations 2014

The Local Authority Accounts (Scotland) Regulations 2014

Enabling Act: Health and Social Care (Community Health and Standards) Act 2003, s.114(3)(4)(5)(b)(c), s.115(1)(2)(4)(5)(6) and s.195(1)(b)

Enabling Act: Housing Grants, Construction and Regeneration Act 1996, s.3(3), s.30 and s.146(1)(2)

Enabling Act: Local Government (Scotland) Act 1973 s.105(1)

In Force: August 1, 2014

In Force: August 13, 2014

In Force: October 10, 2014

These Regulations revoke and replace the Social Services Complaints Procedure (Wales) Regulations 2005 and introduce a new procedure which makes provision for complaints to local authorities about the exercise of their social services functions, with the exception of certain functions capable of being considered as representations under the Children Act 1989 and under the Adoption and Children Act 2002 which are dealt within accordance with the Representations Procedure (Wales) Regulations 2014.

This Instrument amends the Housing Renewal Grants Regulations 1996 to incorporate a reference to section 35B of the Social Security Contributions and Benefits Act 1992.

These Regulations replace the Local Authority Accounts (Scotland) Regulations 1985.

The principal changes are to introduce requirements that local authorities review at least annually their system of internal financial control and prepare an annual governance statement. Part 3 of these Regulations sets out a more detailed process for consideration of local authority Annual Accounts, both prior to and after auditing.

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WHAT IS THE FUTURE SHAPE OF LOCAL GOVERNMENT LEGAL SERVICES?

MIKE BRITCH, Managing Director MEANING OF CONTROL NORSE GROUP Times get ever harder and legal professionals are rightly concerned as budget cuts continue to bite deeper and ‘back-office’ is at the forefront for the lion’s share of the percentage requirement ‘off the budget’.

Predictably, whatever the results of the general election in 2015, there will be even more radical slices out of the pie for local government finance.

But that leaves the lawyers and local authorities with the conundrum: slice and you have little resilience, advisers with less knowledge of your authority, and consequences that will be hard to stomach when things start to go wrong because of limited or lower calibre legal advice.

The private sector, despite the admittance of the traditional outsourcers via the ABS route, will not be able to fill this gap, at least not without cost; limited knowledge of an organisation ensures that firms, which must expose all risks, will ensure that they rate risks higher than maybe necessary.

This can discourage authorities from new strategies to manage frontline services in different ways.

The local knowledge of the in-house lawyer with a deeper understanding of the authority, its ethos and services, can allow for a more pragmatic approach, along with the strategic advice which is valued by senior officers and elected members alike.

Public Law Partnership (PLP), the federated partnership between 31 authorities in the east of England,

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across Cambridgeshire, Essex, Hertfordshire and Suffolk, has held its annual conference, focusing on Future Legal Services. The partners have developed significant systems and mechanisms for cost-efficient legal services, with an internal market place that ensures expenditure on private sector solicitors and barristers in minimised. PLP also leverages significant purchasing power: on legal libraries, IT and systems, training and other essential support systems.

The partnership has saved over £4.5million to date from its endeavours. But is this enough? What is the future for the local government legal service?

What are the challenges of commercialisation, not just of legal services in the world of ABS and greater competition but also with more councils following commercialisation and commissioning agendas, is the competition to provide advice to these new structures going to mean a new approach is essential?

The conference heard from a number of speakers who are progressing new ideas or have become major commercial players in the local government sector.

Mike Britch, Managing Director of the Norse Group, which is wholly owned by Norfolk County Council, presented to PLP delegates, explaining what ‘commercialisation’ means for the frontline of local government and for the lawyers who support and advise on these changes.

BY ENID ALLEN

VICTORIA McNEILL, Practice Director MEANING OF CONTROL NPLAW Norse is recognised nationally as a business with dynamic growth, currently achieving turnover of just under £300m a year, and expanding into new areas of business, such as social care, and the provision of housing with care and care homes, in addition to the property, catering and FM, and environmental services. The group employs more than 10,000 people nationwide and delivers services to millions of people in the UK. Mike emphasised that commercialisation doesn’t mean doing the same things via a different vehicle as that will not deliver a step change nor will it ensure profitability. Success can only come from growth and service efficiencies will only go so far.

Those looking to change their approaches to a more commercial way of delivery, need to put in place these key ingredients:

Local authority lawyers have a key role in advising and supporting the transition to the new ways of working that local government needs to adopt, and many are exploring new partnerships and structures for their own service.

Victoria McNeill is the practice director of Norfolk Public Law (nplaw), and the lead lawyer and monitoring officer of Norfolk County Council. npLaw was set up in 2010 and is a shared legal service between districts and the county, based in Norwich but with hot-desking arrangements in various other locations.

The client base of the shared service is spread far and wide across the UK and turnover is showing dynamic upward trend.

• Commercial and dynamic leadership • Cultural change in the staff – business focused and client centric, • Robust monitoring and reporting systems and delivery built around service specifications and KPIs

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ANDREW Chairman MEANINGWEAVERS, OF CONTROL PUBLIC LAW PARTNERSHIP Delegates were keen to understand the secrets of success, not least in overcoming those traditional barriers of transfers into a county council by district legal professionals. The emphasis was and is on equality and fairness, with representation on the managing board by the partners to the shared service.

These stakeholder partners also share both risk and reward, receiving a stake of the upturn in the client base. Other public bodies receive the services from nplaw on either fixed fee arrangements or hourly rates rather than on the partner basis.

Hugh Peart, director of legal and governance services at LB Harrow, runs the shared legal services with LB Barnet, an innovative arrangement to decrease legal spend, streamline work, and provide the basis for supporting significant change in both London Boroughs. The number of legal staff in the joint team has increased to ensure that there is greater capability and capacity that will diminish spend on external legal services whilst still delivering savings to the authorities.

This recruitment drive is also giving the team the ability to progress to new initiatives, and a wider client base, whilst HB Legal awaits the outcome of their application for ABS.

REUTERS/Brandon Malone

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One of the most important approaches was the attention to blending the cultures of the two teams; Hugh was clear that from the research into private sector mergers, one of the most common reasons mergers fail, is that management neglects the different cultures. Both councils believed that as much attention needed to be given to ‘human’ due diligence as to the financial, governance and operational elements of the merger.

LO C A L G OVE R N M E N T L AW YE R

Hugh and his team conducted a cultural audit to pinpoint key elements of the differences and the results underpin the management and efficiency arrangements.

He has a continuing explicit focus on the well-being of the team regarded as essential for high-performing staff. The team also operates in a ‘paper lite’ environment, able to work anywhere with all files accessible electronically, ensuring that the service can minimise its overheads.

Delegates heard also from members of PLP, and the great progress made to date on achieving savings from the federated arrangements in excess of £4.5m and the opportunities available for doing more.

But there is no time for resting on laurels.

PLP is exploring the options for how it will meet the challenges of supporting their authorities, managing costs, increasing income and providing resilience particularly in the smaller councils. Contributions to the ideas have come from across the partnership.

It is likely that the PLP federation of Public Sector Legal services will continue, leveraging economies of scale and sharing resources between authorities, and in addition, some will reconfigure their services to provide centres of expertise in particular matters, working as one team, with greater capacity to take on external work.

None of these changes mean that local government lawyers, nor colleagues in the frontline will lose the public service ‘ethos’, rather it’s about enabling local government to continue to deliver high quality services that the public expects with governance standards that are the hallmark of local public services.

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legal-solutions.co.uk REUTERS/Neil Hall

LAWYERS IN LOCAL GOVERNMENT SPECIALIST ACTIVITY AREAS

QA NATIONAL LEADS

&

This issue we feature Lawyers in Local Government Specialist Activity Areas leads Nicola Hartley, Eleanor Hoggart, Sam McGinty and Gurbinder Sangha, with each detailing the key issues facing their areas over the next 12 months.

NICOLA HARTLEY SOUTH LAKELAND DISTRICT COUNCIL ROLE Senior Solicitor/ Solicitor Advocate (Higher Courts Criminal Proceedings) BACKGROUND I was Vice Chair of the Northern Branch of SLG from October 2010 for 2 years, when I was then made Chair of the Northern Branch until the merger of SLG with ACSeS on 1st April 2013.

I was appointed National Lead Director with responsibility for Litigation and Licensing on 9th July 2013 for Lawyers in Local Government (LLG). I am founder and manager of the Cumbria Law Clinic in my spare time which I founded in March 2012 which provides free legal advice to anyone who needs it, operating once a month in the evening on a pro bono basis.

WHAT ARE THE THREE KEY ISSUES FACING YOUR SAA IN THE NEXT 12 MONTHS aw Commission consultation on draft proposals for L reforming taxi and private hire licensing laws More than 3000 responses were received following the Law Commission’s consultation in April 2012. In recognition of the level of concern of stakeholders in relation to possible changes to the licensing regime, the Law Commission has published an interim statement outlining the key decisions they have reached following the consultation which includes confirmation that the two-tier system distinguishing taxis and mini-cabs will stay. utcome of Hemming v Westminster City Council appeal at O Supreme Court re licence fees levied for sexual entertaintment venues- implications for levy of licence fees in general. he Anti-Social Behaviour, Crime and Policing Act received T Royal Assent on 13 March 2014 and it is anticipated that it will come into force in the Autumn of 2014. The Act represents the largest overhaul of the ASB tools available to social landlords in many years.

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SAM McGINTY

GURBINDER SANGHA

LEGAL SERVICES LINCOLNSHIRE

NORTH WEST LEICESTERSHIRE DISTRICT COUNCIL

HEREFORDSHIRE COUNCIL

ROLE

ROLE

LLG SAA National Lead – Monitoring Officers and Governance

Junior Professionals SAA Leads

BACKGROUND

BACKGROUND

20 years’ experience as a senior lawyer for District Councils and currently Assistant Practice Director for Legal Services Lincolnshire, a shared legal service for the councils in Lincolnshire.

Sam McGinty trained in private practice and joined the public sector on qualification in 2011. He is the Principal Solicitor for Contracts and Commercial Services for North West Leicestershire District Council.

ELEANOR HOGGART

WHAT ARE THE THREE KEY ISSUES FACING YOUR SAA IN THE NEXT 12 MONTHS The role of the Monitoring officer – and of the in-house lawyer in the local government sector.

It is undoubtedly true that the status of the Monitoring Officer and indeed of the in-house lawyer generally has taken something of a ‘hit’ of late. Unfairly, we were seen by DCLG as part of the problem with the former Standards regime when in reality a large number of MO’s were simply struggling with a massively bureaucratic process of someone else’s making. The vast majority of Monitoring officers see their role not as enforcers – while they will do that if they have to – but as enablers and problem solvers, helping councils with robust, open and transparent decision-making.

Within Council’s themselves, mare and more do not have a lawyer on their corporate management Teams, thereby missing out on some of the valuable - and highly transferable – skills very many MO’s have.

Continuing to develop and improve the, currently a bit patchy, liaison between DCLG and LLG over the development of new legislation etc.

It was very gratifying to be asked by DCLG to comment in relation to the new draft Openness Regulations – albeit that they actually only asked us for comment on the proposed draft guidance to the regs, that did give us the ‘in’ to comment on the regs themselves and many of our comments were taken up and became part of the final Regulations. More of that would be very much welcomed by LLG. Supporting fellow Monitoring Officers in their role whenever and however possible.

We are stronger together after all!

Gurbinder Sangha is a second year Trainee Solicitor at the County of Herefordshire District Council, currently undertaking a seat in Governance.

WHAT ARE THE THREE KEY ISSUES FACING YOUR SAA IN THE NEXT 12 MONTHS The Junior Professional special activity area covers paralegals, Legal Executives, Trainee Solicitors and Solicitors with up to 5 years PQE in local government and we are working hard to engage with all facets of our membership.

It’s important that local government lawyers of all levels engage with our peers, in both the public and private sectors.

Lawyers in Local Government presents great opportunities to network with other local authority legal staff. Alongside our work within LLG, we’ll be continuing to work with the Junior Lawyer’s Division and ensure the voice of the junior lawyer in local government is heard in their debates. In particular the removal of the Trainee Solicitor Minimum Salary and the changes flowing from the Legal Education and Training Review. The latter is likely to have an effect on all lawyers – not just Trainee and qualified Solicitors.

We both feel very positively about the opportunities local government can offer for junior lawyers. We want to hear from our members about their experiences, to see whether this positivity is shared and to learn about the challenges they face and how we might help. We are encouraging all members to use the forums, engage with us through Twitter or Facebook and we will be putting on events to facilitate networking, with the first later this year.

LOC ALG OVL AW YER .CO.UK

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CARE ACT MANUAL, NEW TITLE The Care Act Manual provides a comprehensive and crucial guide to the Care Act 2014 regarding the provision of care and support services to older and disabled people, and their carers, plus safeguarding vulnerable adults from abuse and neglect.

• Ensures you understand the rights and responsibilities of the party you’re advising • Makes sure you’re working from the most up-to-date source available on this new Act • Recognises the impact recent changes to the law have on affected parties August 2014 | £65 | 9780414032606

THE LAW OF PUBLIC AND UTILITIES PROCUREMENT, 3RD EDITION, VOLUME 1 This edition of the work regarded as ‘the bible’ on procurement issues provides a detailed explanation of the legal and policy framework for procurement in the EU and UK, including full analysis of how the 2014 directives will change the rules.

• Includes full analysis of the “problem areas” in the new directives • Looks in depth at procedures for awarding PFI/PPP contracts • Offers detailed analysis of “grey” areas of practical importance, such as post-tender negotiations and corrections to tenders September 2014 | £125 | 9780421966901

MENTAL HEALTH ACT MANUAL, 17TH EDITION Written in a clear, practical style, the new 16th edition of the Mental Health Act Manual is your indispensible guide to the Mental Health Act, providing clear instructions on the Act and how it governs their working practices.

• Written in a clear, practical style, designed to be accessible to both the medical and legal profession • User-friendly style: primary and secondary legislation is annotated in the Parts with the analysis of important contextual aspects of mental health law located in the Annexes • Readers benefit from the expertise and advice of one of the most highly respected individuals in the field September 2014 | £79 | 9780414034648

BUSINESS PREMISES: POSSESSION AND LEASE RENEWAL, 5TH EDITION

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Now in its fifth edition, Business Premises: Possession and Lease Renewal gives clear explanation and detailed commentary on how a landlord or licensor can obtain possession of business premises, and how a tenant can oppose such action or renew the lease.

• Comprehensive and detailed guidance on this key area of landlord and tenant work • Step-by-step through the process, with guidelines on correct procedures to adopt, evidence required, and orders the court may make • Completely up-to-date, with new legislation and case law, including recent changes to Part II of the Landlord & Tenant Act 1954 October 2014 | £115 | 9780414034358

JUDICIAL REMEDIES IN PUBLIC LAW

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Judicial Remedies in Public Law provides unrivalled coverage of the full range of judicial remedies available to litigants in public law cases, from judicial review to those which are less common, such as habeas corpus. New To This Edition: • Changes to the scope of Judicial review in relation to superior courts of record and bodies such as the new Upper Tribunal • Developments in the scope of judicially reviewable acts • Changes in practice and procedure, especially in relation to the rules on delay, protective costs orders, cross-examination and disclosure December 2014 | £205 | 9780414045354

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LOCAL GOVERNMENT LAW

AT YOUR FINGER TIPS ON WESTLAW UK

We’ve been working hard to ensure that we continue to deliver the information you need in the ways you want it. That’s why we’ve identified our key looseleaf titles that local government legal professionals use and ensured that they are available to you on Westlaw UK. You’ll have all the tools you need in one place, online – meaning it couldn’t be easier for you to access the information you need, and fast.

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SCHOFIELD’S ELECTION LAW • Local government law • 3 Releases a year • Sets out and explains the law and practice of elections and referendums in England and Wales ENCYCLOPEDIA OF LOCAL GOVERNMENT LAW • Local government law • 3 Releases a year • Incorporates full texts of Acts and regulations, accompanied with a detailed commentary and full references to relevant judicial authorities

ENCYCLOPEDIA OF SOCIAL SERVICES AND CHILD CARE LAW • Family & social welfare law • 3 Releases a year • Provides clear explanation of the law relating to the care of children and vulnerable adults and social services

CROSS ON LOCAL GOVERNMENT LAW • Local government law • 3 Releases a year • The definitive narrative text on local government law with an established reputation among local government officers and lawyers. It provides a full and detailed account of local authorities’ powers and duties in their many fields of operation

ENCYCLOPEDIA OF PLANNING LAW AND PRACTICE • Planning law • 4 Releases a year • The most comprehensive source of information and guidance on planning law and policy includes all relevant legislation including EC legislation as well as domestic statutes and statutory instruments

ENCYCLOPEDIA OF HOUSING LAW AND PRACTICE • Housing law • 4 Releases a year • Providing the housing law practitioner with a wide range of housing information, including all relevant legislation with annotations

ENCYCLOPEDIA OF COMPULSORY PURCHASE AND COMPENSATION

EU PUBLIC PROCUREMENT LAW AND PRACTICE • Local government; Public procurement law • 2 Releases a year • Providing practical guidance on all aspects of the EU public procurement legislation

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ENCYCLOPEDIA OF ENVIRONMENTAL HEALTH LAW AND PRACTICE • Environmental law • 3 Releases a year • A definitive source of reference whenever needing guidance on any aspect of this wide-ranging area of law

ENCYCLOPEDIA OF HIGHWAY LAW AND PRACTICE • Highway law • 3 Releases a year • Ideal for the practitioner dealing with all compliance issues, and including the full text of all relevant legislation with annotations

• Planning law • 3 Releases a year • Provides a complete and up-to-date guide to the complex provisions of the law relating to compulsory purchase and presents detailed coverage of the powers of relevant authorities SWEET & MAXWELL’S PLANNING LAW: PRACTICE AND PRECEDENTS • Planning law • 3 Releases a year • Dealing with all aspects of town and country planning, and specifically written to help you solve the problems you are likely to face in daily practice

ENCYCLOPEDIA OF ROAD TRAFFIC LAW AND PRACTICE • Road Traffic • 3 Releases a year • Reproduces all relevant legislation and subordinate legislation, with clear detailed explanation and interpretations and includes summaries of case law and separate sections devoted to procedure and EU materials RUOFF AND ROPER: REGISTERED CONVEYANCING • Conveyancing • 4 Releases a year • Unrivalled reference source on land registration covering the whole process of land registration from first registration and upgrading of land through to rectification, indemnity and determination of disputes EMMET AND FARRAND ON TITLE • Conveyancing • 4 Releases a year • Guiding readers through the law and practice of conveyancing, Emmet and Farrand covers every stage of the conveyancing transaction in meticulous detail, from enquiries before contract through to completion WOODFALL LANDLORD & TENANT • Landlord & tenant • 4 Releases a year • Provides you with a complete and definitive reference work covering residential, commercial and agricultural landlord and tenant law and covers a range of topics from the relationship between landlord and tenant, through leases and leasehold enfranchisement to the implications of commonhold ownership, rent and covenants For more information about our local government content on Westlaw UK contact your account manager, or call us on 0800 028 2200.

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PROFILE

PROFESSOR SUE ARROWSMITH

Professor Sue Arrowsmith is Director of the Public Procurement Research Group in the School of Law, University of Nottingham, and is also an Adjunct Professor at Copenhagen Business School and a Foundation Professor of the Chartered Institute of Purchasing and Supply (CIPS).

Her numerous publications on public procurement have been extensively cited by courts and in legislative texts in North America, Asia and Africa as well as throughout Europe. She is author of The Law of Public and Utilities Procurement.

The 3rd edition publishes in September.

WE LAST SPOKE WITH YOU IN AUTUMN 2006; WHAT HAVE BEEN SOME OF THE KEY CHANGES WITHIN PUBLIC PROCUREMENT LAW SINCE THEN? The main changes that have occurred have been the result of developments at EU level. Since we last spoke the changes in the EU regime have perhaps been greater than at any time since the EU began to regulate procurement. This was quite unexpected as many people thought that after adopting two new procurement directives in 2004 the EU might leave this area alone for a while. But this has been far from the case.

The first development at EU level was the adoption of a new directive in 2007 to strengthen the remedies regime (Directive 2007/66). This amended the existing Remedies Directives to add new features that make it easier for suppliers to challenge unlawful decisions.

Some of these were based on existing case law of the European Court of Justice – for example, the Directive put into legislation the requirement for a “standstill period” (i.e. a delay between notifying losing tenderers of the outcome of a competition and concluding the contract in question), based on the Court’s ruling in Alcatel. Others, however, were new – for example, provision for an automatic prohibition on concluding a contract once a challenge is made (although this

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can be lifted by the court), and a requirement for the courts to declare contracts ineffective for certain kinds of violations. These changes became effective in UK law in 2009. Empirical research I have been doing (together with Richard Craven) on the impact of these changes shows that they have had quite a significant impact in encouraging suppliers to make complaints and institute legal proceedings – although there has not been a huge increase in the number of cases proceeding to judgment in court. These developments make it more important than ever to make sure that public procurement procedures comply with the law.

A second development was the adoption in 2009 of a special new directive on defence and security procurement (Directive 2009/81). This provides for slightly different procedures and remedies for this kind of procurement and also aims to bring within the procurement regime in practice some procurement in these sectors which was de facto done outside the regime.

Most recently, in 2014 the EU adopted a whole raft of legislation, in the form of three new directives. Most of this will need to be in place in Member States by April 2016 but the Westminster Government in the UK is intending to introduce it much earlier – possibly even by the end of 2014/early 2015.

One of these new directives (Directive 2014/25) is a new Directive on concessions covering, for example, toll roads, tramway systems and various other infrastructure projects.

This regulates the award of concessions in detail for the first time, filling a gap in the regulatory regime. The other two directives replace the current legislation on public contracts in general (currently Directive 2004/18) and contracts of utilities (currently Directive 2004/17). They introduce many changes to the current rules – notably allowing for use of negotiation for a wide range of contracts, and requiring use of electronic means in all procurement procedures from 2018. They also add into the legislation many rules developed already in the case law of the Court of Justice and clarify when these apply – for example rules governing arrangements between different public bodies (such as shared services arrangements) and rules on when concluded contracts can be amended without a new competition.

Apart from the changes required by the EU, there have also been a host of other developments in UK law. These include new legislation requiring public bodies to give greater attention to social and environmental aspects of procurement – the Equality Act 2010 and the Public Services (Social value) Act 2012. There is also the Localism Act widening the procurement powers of local authorities, the introduction of the Community Right to Challenge under the same Act. At the same time there is more and more case law interpreting the rules, which anyone working in the field needs to know about.

WHAT IMPACT HAVE THESE CHANGES HAD ON THE NEW EDITION OF THE LAW OF PUBLIC AND UTILITIES PROCUREMENT? The main impact of the changes is that there is so much more material. This has meant the book has had to be much longer than previous editions. It has also been split into two volumes, which will be released at different times.

The main reason for this is simply to reduce the waiting time for before publication of the first lot of material! This ensures that most of the 2014 material will be covered in the book in good time for the market to study before the new rules have to be implemented.

COULD YOU TELL US ABOUT YOUR BACKGROUND AND HOW YOU CAME TO SPECIALISE IN PUBLIC PROCUREMENT LAW? I actually started working on public procurement law way back in 1984 when I first started my PhD in Canada. I was intending to do something else in the area of public/administrative law but stumbled across public procurement rules there which no-one had ever written about at that time. I found the whole topic really interesting and ended up doing my entire PhD on it. When I finished I came back to the UK as a lecturer just at the time that public procurement law as becoming important here – this was in the late 1980s when the EEC (as the EU then was) was first starting to take public procurement policy seriously as part of its plan for the 1992 Single Market. Although when I first came back I was teaching and writing on various different subjects, public procurement expanded in importance so quickly that it came to take up all my time. Now I don’t really do much else!

HOW DO YOU RELAX IN YOUR SPARE TIME? My main interests are sports of all kinds. I swim competitively in both pool competitions and open water races and also do cross country skiing and cycling. I also watch a lot of sport – especially football (my own team, Port Vale, and also the local team, Nottingham Forest) and athletics – as I am writing this I am just off to Glasgow for the swimming and athletics at the Commonwealth Games.

THE LAW OF PUBLIC AND UTILITIES PROCUREMENT VOLUME 1 3RD EDITION

|

SEPTEMBER 2014

|

£175

WHAT DO YOU SEE AS THE KEY FEATURES OF THE TITLE THAT WILL SET IT APART FROM ITS COMPETITORS? One of the things that sets this book apart is the level of detail in the coverage of practical issues, such as when corrections to tenders are allowed and how the law applies to complex areas such as development agreements.

A related point is that the book it doesn’t just set out what the legislation and court decision say, but looks in detail at how the law is likely to be applied to other situations that have not yet come up in the courts.

Another key feature of the book is the depth of coverage given to both the current rules AND the new ones. I have followed the development of the 2014 legislation very closely and had drafted a lot of material on it as the legislation was going through.

This meant it was easy for me produce a detailed analysis of the new rules quite quickly once the directives were actually adopted in February of this year.

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REUTERS/TOBY MELVILLE

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THE CARE ACT MANUAL THE ESSENTIAL GUIDE TO PROTECTING THE VULNERABLE

In light of the Care Act 2014, the Care Act Manual provides a comprehensive and crucial guide to this piece of legislation.

Written by Tim Spencer-Lane who is responsible for the Law Commission’s review of adult social care law, the Care Act Manual is written in a clear and practical style is written in a clear and practical style to help you easily understand the law and its implications.

CARE ACT MANUAL Tim Spencer Lane • ISBN: 9780414032606 • Publishing: September 2014 • Price: £65

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THE MENTAL HEALTH ACT MANUAL The Mental Health Act Manual is your essential guide to providing clear instructions on the 1983 Act and its associated legislation and case law. Armed with this title, you can make better decisions to empower and protect vulnerable people who are not able to make their own decisions.

Among the new developments incorporated in the 17th edition include: • • • • •

P v Cheshire West and Chester Council on the meaning of a “deprivation of liberty” AM v South London & Maudsley NHS Foundation Trust on whether the Mental Health Act or the Mental Capacity Act should be used in respect of a compliant mentally incapacitated patient who is being deprived of his liberty Bostridge v Oxleas NHS Foundation Trust on the payment of nominal damages for an unlawful detention Amendments to the Act made by the Children and Families Act 2014 and the Crime and Courts Act 2013 Amendments to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules made by the Tribunal Procedure (Amendment) Rules 2014

The new edition will also publish as an eBook on Thomson Reuters ProViewTM giving you insight and guidance on judicial review you can trust, with the flexibility and tools of ProViewTM.

For a full list of updates and features please visit sweetandmaxwell.co.uk PLACE YOUR ORDER TODAY sweetandmaxwell.co.uk

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