2019 looks set to be a year of interesting challenges and opportunities for local government. Our predictions of issues that local authorities will need to address in 2019 are:
As we get closer to the time of the United Kingdom’s withdrawal from the European Union, local authorities will need to ensure they understand how arrangements affecting them will change. For example, there will be changes to practical arrangements for regimes such as public procurement that are currently led from within the European Union, with authorities needing to change from advertising in OJEU to using a UK-specific service to advertise public contracts.
There will also be changes to retained EU legislation to ensure that it can continue to operate effectively. Although much of this will simply involve changes to terminology, local authorities will need to give attention to this, to ensure that any documents that refer to EU law will continue to be effective.
Development and Public Procurement
The judgment of the Court of Appeal in the case of Faraday Limited v West Berkshire Council reminded contracting authorities of the limited circumstances in which they can enter into agreements with developers without triggering the application of public procurement regulations. The judgment left unscathed the principle established by previous cases that public procurement will not be involved in a land sale by an authority which imposes no binding obligation on a developer to deliver works to meet the authority’s requirements.
However, it also showed the need to consider the substance of a transaction and establish whether this would genuinely be within the scope of such principles. It will be interesting to see the impact this judgment has on the approaches that local authorities take towards land disposal.
The Law Commission is expected to publish recommendations to reform the law of misconduct in public office, following its consultation on this subject. This could lead to the abolition of the current offence of misconduct in public office and the creation of a new offence or offences.
We may also see proposals for changes to the regime regulating the conduct of local authority members in England, following consultation by the Committee on Standards in Public Life in 2018.
The case of Peters v Haringey London Borough Council last year was important in showing that local authorities have power to act through a limited liability partnership rather than a company, unless they are acting for a commercial purpose.
It also showed that, even with the availability of the general power of competence, people who oppose a local authority’s actions will look in detail at the exercise of powers, to try to find grounds for challenge. In this case, the key issue was the purpose for which the council had acted. Local authorities will need to ensure their decision-making is meticulous and their records are comprehensive to avoid being the subject of a challenge in 2019.
The pressure on local authority resources shows no sign of easing, with a recent report from Grant Thornton saying that more than a third of councils in England are at risk of financial failure in the next decade. The difficulties are expected to be particularly acute for local authorities with statutory responsibility for care services, for which demand is high. Local authorities will need to continue to seek ways of working which allow them to make savings and to generate income.
Steps may be taken to make changes to planning law in Wales. The Welsh Government is expected to respond to the Law Commission’s report on planning law in Wales, which was published in December 2018 and recommended the creation of a new planning code for Wales. In England, local authorities are operating under the new National Planning Policy Framework which was published by the UK Government in 2018 and included new requirements for housing delivery.
It will be interesting to see how local authorities manage these requirements and whether the risk identified by the chair of the Local Government Association, that locally agreed plans will be bypassed by national targets, happens in practice.
The Freedom of Information (Extension) Bill, which has its second reading on 25 January 2019 would amend the Freedom of Information Act 2000. As well as making some additional bodies subject to the legislation, the Bill will deem that all information held by contractors and sub-contractors in connection with performance of contracts for provision of services to or on behalf of a public authority is held on behalf of the authority. This would prevent contractors from arguing that information is not subject to Freedom of Information legislation if a contract is silent about the basis on which it is held. Local authorities should make sure their contractors are aware of the implications of Freedom of Information legislation.
Governance – Eligibility to be a councillor
The UK Government has decided to amend the criteria that disqualify persons from being elected or holding office as a consultation. Following support in consultation for this proposal, the Government is expected to amend the Local Government Act 1972 to disqualify persons convicted of relevant offences or subject to orders or notification requirements relating to sexual or anti-social behaviour.
Wales – Codification of Welsh law
A Bill progressing through the National Assembly for Wales is expected to have a major impact in making laws in Wales more accessible and easier to understand. The Legislation (Wales) Bill will provide for consolidation and codification of Welsh law, organising the law by reference to its content and maintaining a system in which such law will retain its structure. The Bill will also require the Counsel General to keep the accessibility of Welsh law under review.
Wales – Local Government Reform
Although there has been consultation about possible reform of the structure of local government in Wales, we still await publication of a Bill. We will wait with interest to see if this happens in 2019 and if any such Bill also takes forward the introduction of a general power of competence for local authorities in Wales.
Tiffany Cloynes is partner and head of the regeneration and public services team in England and Clare Hardy is a professional support lawyer at Geldards.