Local Government Lawyer Home Page


Sharpe Edge Webpage Banner

Welcome to Sharpe Edge, Sharpe Pritchard’s local government legal hub on Local Government Lawyer.

Sharpe Edge features news, views and analysis from our team of specialist local government lawyers working at the heart of the latest legal developments. Sharpe Edge platform is also the only place where local government lawyers can get e-access to two law books by our Head of Local Government Rob Hann: The Guide to Local Authority Charging and Trading Powers (‘LACAT’) and The Guide to Local Authority Companies and Partnerships (‘LACAP’).

 

                                                                                                  

Slide background

The Queen’s Speech and Judicial Review

Icons HouseColin Ricciardiello looks at the likely effects of the government's proposed changes to the judicial review process.

Judicial Review proceedings are of great constitutional importance and are an independent mechanism for scrutinising and controlling the exercise of a public body’s power.

In 2019 Judicial Review was front page news when Gina Miller challenged the Government’s decision to prorogue Parliament by an Order In Council. The Supreme Court held that even though the Executive had the power to suspend Parliament, that power was not unlimited and its exercise was subject to review by the Court. In Miller the exercise of the power was held to be unlawful. The Dissolution and Calling of Parliament Bill (also mentioned in the Queen’s Speech) proposes to oust the courts’ jurisdiction to question the prerogative power to dissolve Parliament and call a new Parliament.

In July 2020 the Government appointed Lord Faulks QC to undertake an independent review of the Judicial Review procedure in England & Wales. The Faulks review was published in March 2021 and its general conclusions were that the procedure was in good health and the numbers of Judicial Review cases had not risen dramatically in recent times.

On 18 March 2021, a consultation was commenced on the Faulks recommendations. That consultation closed on 29 April 2021 and its results are being assessed – hence the Queen’s Speech proposals were expressed to be subject to the outcome of the consultation.

Against this background the Queen’s Speech set out the Government’s desire to “…strengthen and renew democracy and the constitution …” and introduce legislation that “…will restore the balance of power between the executive, legislature, and the courts “

The intention was revealed as being one which protects the judiciary from being drawn into political questions and preserves the integrity of Judicial Review for its intended purpose – to hold the Government into account, apply Parliament’s intentions and protect individual rights.

The reference to “balance” is on first blush difficult to follow as the Courts’ function is to apply and interpret the law: and that is not “balanced” against some other consideration. This might suggest that these aims are directed towards a recalibration which places certain areas of the Executive’s and Legislature’s activities beyond the scope of Judicial Review.

In the light of the Faulks conclusions it looks like there will be no major day-to-day reform of Judicial Review but there will be two significant changes in the Judicial Review Bill.

The first change will be to Judicial Review in the field of Immigration appeals. In its explanatory information on the Queen’s Speech, the Government has indicated that the Supreme Court’s decision in the case of Cart is to be overruled, so that Judicial Review will be removed from a category of immigration cases. Basically, the ability to seek Judicial Review of decisions of the Upper Tribunal refusing permission to appeal to it is to be ended. The Government considers that this class of case has hardly any chance of success (described as “numerous spurious cases challenging Upper Tribunal decisions”) and that they are launched as a delaying tactic to avoid deportation. The MoJ figures produced tend to support that view in that of more than 5,500 judicial reviews of Upper Tribunal cases analysed only 12 succeeded.

The other significant proposal for change picks up on the Faulks recommendation that in appropriate cases a suspended quashing order could be made on an application for Judicial Review. This would mean that a successful quashing of an unlawful act or decision can be postponed so as to give time to remedy the “mischief” instead of coming into immediate effect. The example given is a large infrastructure project not being delayed because an impact assessment had not been done properly.

This clearly is a response to some recent decisions that have been made by the courts in relation to Development Consent Orders (“DCO”), such as the Norfolk Vanguard offshore wind farm order. In that case, the Secretary of State’s decision to make the DCO was quashed by the court on the basis of a failure to assess the cumulative environmental impacts of the Vanguard project and a neighbouring wind farm proposal. The proposal in the Bill would allow for a remedy (for example carrying out the assessment properly within a specific time frame) without quashing the whole decision concerning the project.

This looks to be of particular value to third parties (like developers applying to the Secretary of State for a DCO or to a local planning authority for planning permission) who have honestly relied on what turned out to be an unlawful act. Though it is worth noting that the Court’s decision in Vanguard was not to quash the whole DCO, but just the Secretary of State’s decision to make it. The Secretary of State is currently consulting on the means by which he will retake the decision.

Another proposal arising out of the consultation was that in some cases where a Judicial Review claim succeeds, the court should have the power to grant a prospective remedy. It is not clear if this will be pursued in the Bill.

Prior to the Queen’s Speech there were concerns that the proposals for change would represent a serious exclusion or erosion of justice and accountability. It does not look like those concerns are going to become a reality but then again that will only become clearer when the detail of the bill is known.

Colin Ricciardiello is a partner at Sharpe Pritchard LLP


For further insight and resources on local government legal issues from Sharpe Pritchard, please visit the SharpeEdge page by clicking on the banner below.

sharpe edge 600x100

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email This email address is being protected from spambots. You need JavaScript enabled to view it.

LACAT BookFREE download!

A Guide to Local Authority Charging and Trading Powers

Written and edited by Sharpe Pritchard’s Head of Local Government, Rob Hann,

A Guide to Local Authority Charging and Trading Powers covers:

• Updated charging powers compendium          • Commercial trading options

• Teckal ‘public to public’                                    • Localism Act

FREE DOWNLOAD

LACAT BookAvailable to buy:

A Guide to Local Authority Companies and Partnerships

An invaluable, comprehensive toolkit for lawyers, law firms and others advising
on or participating in Local Authority Companies and Partnerships”

- Local Authority Chief Executive

BUY NOW

  More Articles

<a href=

Levelling up – A new opportunity for further devolution in England?

Rob Hann explores the Government's 'levelling up' policy and looks at whether it is an opportunity for further devolution in England.
<a href=

Time limits for commencing proceedings in procurement challenges

Colin Ricciardiello discusses a landmark procurement challenge judgment on the time limit for commencing proceedings.
Icons Hazard

The Revised National Planning Policy Framework: Better design, greener outcomes?

Alastair Lewis and Sarah Wertheim outline the latest National Planning Policy Framework changes and explain how future developments will be impacted by the new rules.
<a href=

Loose talk costs money: Oral agreement to forego liquidated damages was valid

Michael Comba outlines and analyses a contract dispute resolution: Mansion Place Ltd v Fox Industrial Services Ltd [2021] EWHC 2972 (TCC)
<a href=

Procurement reform – an update

Radhika Devesher and Natasha Barlow provide a summary of the proposed and enacted changes to the UK procurement regime post-Brexit.
Icons Court

The Public Procurement Review Service Report: Procurement Pitfalls and How to Avoid Them

Juli Lau and Beth Edwards examine some of the most common procurement pitfalls and provide a checklist of points for local authorities to bear in mind in order to avoid costly errors.
<a href=

JCT Dispute Adjudication Board Rules: a case of “three’s a crowd”?

Peter Jansen who specialises in construction law and dispute resolution, examines the roles and functions of the JCT’s Dispute Adjudication Board and highlights some key considerations for parties planning to adopt the Rules in their JCT contracts.
<a href=

The Electric Vehicle Revolution or…

Emily Knowles discusses new legislation on the requirement of electric vehicle charging points, and its potential impact on the Electric Vehicle Revolution.
<a href=

Consultation on the Electronic Communications Code – What’s Changing?

Lillee Reid-Hunt outlines the legislative changes to the Electronic Communications Code.
Icons Court

You Must Adjudicate First NEC3 imposes obligation to adjudicate first before commencing court proceedings.

Michael Comba discusses NEC3 imposing an obligation to adjudicate first before commencing court proceedings.
Icons Court

Rocking aground the Christmas tree

Clare Mendelle and George Dale discuss and solve a common construction scenario, looking at the position under the Contract, and how the Employer should deal with the Contractor's request.
Icons Hazard

Adequacy Decision Granted to the UK

Charlotte Smith considers two recent adequacy decisions and explains how this affects existing data practices.
<a href=

Managing employees with long COVID and employees who have anxiety about returning to the office

Julie Bann and Victoria Smith consider how Long Covid may be treated under existing employment laws and provide compliance guidance for employers.
<a href=

Environment Act 2021: What Does it Mean for Waste Authorities?

Sally Stock, Juli Lau, Ellen Painter and Beth Edwards discuss notable changes made to the Environment Bill 2021-2022, which received Royal Assent on the 9th November.
<a href=

ESG and its relevance to the public sector

Peter Collins and Sydney Chandler discuss the growing importance of Environmental, Social, and Governance criteria in public procurement.
<a href=

JCT 101: Time and Punishment

Rachel Murray-Smith, Clare Mendelle and Laura Campbell discuss a common Construction scenario regarding the Practical Completion of a project, and the position under the unamended JCT DB 2016.
Icons Court

The importance of due process, communication and fairness in employee conduct investigations – what you need to know.

Julie Bann and James Hughes discuss the importance of fairness in employee conduct investigations, taking a look at the London Borough of Hammersmith and Fulham -v- Mr S Keable case.
<a href=

Becoming More Inclusive: VAT and Public Procurement

Juli Lau, Natasha Barlow and Beth Edwards examine the recently published Public Procurement Regulations 2021, focussing upon amendments to the thresholds within various procurement regimes.
<a href=

The LADs are Alright

Laura Campbell discusses liquidated damages in construction contracts, focussing upon the long-running Triple Point saga which ended in the Supreme Court this year.
<a href=

Procurement Policy Note 08/21

Juli Lau and Beth Edwards outline Procurement Policy Note 08/21, recently published by the Cabinet office.
Icons Court

Hard Times: Improving Air Quality with Clean Air Zones

Rob Hann and James Goldthorpe examine the introduction of Clean Air Zones to improve air quality across the UK.
<a href=

Autumn Budget Spending Review 2021 – What Public Bodies Need To Know

Rob Hann and James Hughes examine the Autumn Budget Spending Review 2021, looking at what Public Bodies need to know.
<a href=

Net Zero – What’s new for local authorities?

Steve Gummer and Sophie Drysdale look at two major climate publications: the Heat and Buildings Strategy and the Net Zero Strategy.
Icons Hazard

Jumping to conclusions: Final Statements, liquidated damages and material breaches of natural justice

Michael Comba looks at a recent Technology and Construction Court case that provides useful guidance on the JCT’s procedural requirements on disputing Final Statements.
Icons Court

Three times one equals one: Several disputed payment applications amount to a single dispute

Michael Comba considers a case in which the High Court dismissed an employer’s argument that an adjudicator lacked jurisdiction because the referral concerned three separate payment applications and, therefore, comprised three separate disputes.
<a href=

Warm feelings or hot air: the Heat and Buildings Strategy and Heat Networks

This week the government published its Heat and Buildings Strategy (Strategy). This contained vital innovations and essential step changes in terms of how heating is provided, writes Steve Gummer.
<a href=

Procurement reforms: update from Cabinet Office

Rob Hann, Nicola Sumner and Juli Lau assess the Cabinet Office's update on the progress of the government's public procurement reforms.
Icons Court

Bond, Performance Bond. Delivering value for the Public Sector?

Justin Mendelle examines whether public sector clients achieve value for money from the provision of performance bonds.
Icons Hazard

Not so personal messages: R. (on the application of Good Law Project Ltd) v Secretary of State for Health and Social Care and Abingdon Health Plc [2021] EWHC 2595 (TCC)

Nicola Sumner, Juli Lau and Beth Edwards look at The Good Law Project's challenge of the direct award by the Secretary of State for Health and Social Care of three contracts for the production and supply of rapid Covid-19 antibody tests (the “Contracts”).
<a href=

Insolvency – Termination and Beyond

Rachel Murray-Smith and Clare Mendelle consider the potential warning signs of, and the compliant manner for dealing with, contractor insolvency.
Icons Court

Settlement agreements – waiving Personal Injury claims

In the case of Farnham-Oliver v RM Educational Resources LTD, the Queen’s Bench Division of the High Court allowed a Personal Injury claim (“PI claim”) to be pursued by an employee against his former employer despite the parties signing a Settlement Agreement in respect of an Employment Tribunal claim on the same issue. Julie Bann and James Hughes report.
Icons Hazard

Mandatory Vaccination for Care Home Workers in England – Update

Rachel Murray-Smith and Francesca Gallagher look at the detail of the government's guidance on compulsory vaccination for care staff.
<a href=

Make your mind up! Liquidated Damages clause upheld despite Employer’s challenge

In the recent case of Eco World Ballymore (EWB) v Dobler[1] , an Employer took the unusual position of challenging their own entitlement to liquidated damages (LDs) on the ground that the LDs provision constituted an unenforceable penalty clause. Clare Mendelle and James Goldthorpe investigate.
<a href=

Are Collateral Warranties Construction Contracts? Timing is Key.

Clare Mendelle and Anna Sidebottom examine the recently decided case of Toppan v Simply[1], which has provided guidance on when collateral warranties may be considered “construction contracts” under the Housing Grants, Construction and Regeneration Act 1996 and so give the warranty holder the right to adjudicate.
Icons Court

Climate emergency or climate catastrophe?

Rob Hann asks how central & local government departments and councils can work together more effectively to combat the challenges to achieve net zero by 2050.
Slide background