Our administrative and public law seminar covered: - a review of the last 12 months in FOIA and a case law update - scope of prerogative powers - what are they and what is the scope of them; the topic is very much in the news at the moment due to Brexit - non EU treaty obligations of relevance to administrative law - procurement in 2016 and beyond - current trends, updates and the impact of Brexit - case law update on various areas of public law, including judicial review.

1. Administrative and public law seminar
October 2016, London

2. Welcome to the administrative
and public law seminar
Thursday 20 October 2016
Browne Jacobson, London

3. Information Law Update
Ros Foster and Megan Larrinaga

4. Hot Topics over the last 12 months
• Legislative Changes
 GDPR
 FOIA Review
• Significant Cases from Last Year
 Vidal-Hall Settles
 Dransfield Dismissed
• New Cases
 DPA Damages
 SARs in the Courts
 Employees’ Right to Privacy
• AOB
 Brexit

5. GDPR
• Comes into force on 25 May 2018
• Aims to create a uniform regime with enhanced rights
for data subjects, enhanced confidence in security and
increased accountability and a reduction in
bureaucracy
• New definitions of personal data and sensitive personal
data
• New principles for data processing
• New obligations on data controller and data processors
• Increased fines for breaches of the Regulations

6. DEFINITIONS – PERSONAL DATA
Current
Data relating to a living individual who can be identified
from those data or from those data and other information
which is in the possession of, or likely to come into the
possession, of the data controller.
Future
An identifiable person who can be identified directly or
indirectly, in particular by reference to an identifier such
as name, identification number, location data, online
identifier or to one or more factors specific to their
physical, cultural, physiological, genetic, mental,
economic, cultural or social identity.

7. Special Categories of Data
• Data revealing-
 Race or Ethnic Origin
 Political Opinions
 Religious or Philosophical Beliefs
 Trade Union Membership
 Health or Sex Life and Sexual Orientation
 Genetic or Biometric data in order to uniquely identify
a person
• Processing of any/all of the above prohibited subject to
exceptions

8. Principles for Data Processing
• Data must be processed lawfully, fairly and in a transparent
manner
• Data must only be collected for a specified, explicit and
legitimate purpose
• Data must only be processed to the extent that it is adequate,
relevant and limited to what is necessary in relation to the
purpose for which they are processed
• Data must be accurate and up to date. Data which is inaccurate
should be erased or rectified without delay
• Identifiable data should not be kept longer than is necessary
• Ensure appropriate security of the data
• Ensure compliance with the Regulations.

9. Data Subject Rights
• Data subjects can require:
 Inaccurate personal data be corrected or incomplete data be
completed including by way of supplementing a corrective
statement
 Personal data to be in a machine readable and structured
format commonly used by the data subject and that allows
for further use
 The data controller to delete their personal data where
certain conditions are met (the “right to be forgotten”)

10. Data Subject Rights: continued
 Restriction of processing of personal data – so that this can
only be held by the controller and used for limited purposes
 Transfer of personal data from one data controller to
another (“data portability”)
 Processing of personal data not take place for direct
marketing, including profiling
 Not to be subject to a decision based solely on automated
processing, such as in connection with insurance premiums
The rights of access, rectification, erasure and the right to
object must be given effect to free of charge

11. Information to be provided to data subjects
• Data controllers must provide the following to data subjects on
request:
 Identity and contact details of data controller and data protection
officer
 Intended purpose of processing and period for which data will be
stored
 Existence of rights: access, rectification, objection and erasure
 Right to lodge a complaint internally and to a supervisory authority
 Recipient or categories of recipients to whom data will be disclosed
 Intention to transfer to another country or international organisation
• Information must be concise, transparent, intelligible and easily
accessible
• Must be provided in writing unless otherwise requested.

12. Data Controller Obligations
• Designate a data protection officer (where required)
• Appoint a sub-processor
• Adopt policies and implement appropriate technical
and organisational measures to ensure and be able to
demonstrate compliance with GDPR
• Implement security requirements
• Deal with privacy impact assessments
• Comply with requirements of supervisory authority
• Report breaches to the supervisory authority and
affected data subjects

13. Data Processor Obligations
• Designate a data protection officer (where required)
• Appoint a sub-processor only with authorisation of a data
controller
• Adopt policies and implement appropriate technical and
organisational measures to ensure and be able to demonstrate
compliance with GDPR
• Implement security requirements
• Comply with requirements of supervisory authority
• Maintain a written record of all personal data processing carried
out on behalf of a data controller
• Notify data controllers without undue delay after becoming aware
of a breach

14. Non-Compliance by Data
Processors
• Sanctions by regulator
• Damages claims from data subjects
– failure to comply with lawful instructions of data
controller
– apportionment between data controller and data
processor
• Damages claims from data controllers

15. Mandatory Breach Notification
• Notify data protection authority without undue delay
and, where feasible, within 72 hours of awareness –
reasoned justification required where timeframe is not
met
• Notify the affected data subjects without undue delay –
where there is a “high risk” to their rights and
freedoms
• Not required if breach is unlikely to result in a risk to
the rights and freedoms of individuals
• Adopt internal procedures for data breaches

16. Consequences of a Data Breach
• Level 1: €10,000,000 or 2% total worldwide annual
turnover
• Level 2: € 20,000,000 or 4% total worldwide annual
turnover
• Factors taken into account when determining fine:
 Nature, gravity and duration of the breach
 Whether breach intentional or negligent
 Previous breaches by the data controller/processor
 Technical and organisational measures in place.

17. FOIA Review – As you were (mostly)
• March 2016 FOIA working well and does not need substantial
reform.
Key recommendations
• Section 35 (exemptions in respect of government policy
information)
• Section 36 (prejudice to the effective conduct of public
affairs)
• Limiting the scope for appeals
• Extension of time to respond to FOIA requests – limited to an
additional 20 days
• Internal Reviews – 20 days
• Publication obligations

18. Last Year’s Cases – Vidal Hall
• Ground-breaking case in which the CofA held that
cookies were personal data and a claimant need
not demonstrate pecuniary loss in order to make a
claim for damages pursuant to Section 13 DPA
• Effect of CofA decision was to disapply section
13(2) of the DPA and allow Claimants to bring a
claim for breach of the DPA for distress alone
• Google appealed to the Supreme Court but on 12
July 2016 the appeal was withdrawn.

19. Last year’s Cases - Dransfield
• Leading Case on dealing with vexatious requests
• Relevant factors in establishing whether request is vexatious are:
(1)Burden – number, breadth, pattern and behaviour of the previous
requests
(2)Motive
(3)Value of the request
(4)Harassment
• The presence of any/all of the above does not necessarily mean a
request is vexatious but mean the request can be considered
vexatious
• Applied to the Supreme Court for permission to appeal
• Permission refused on 17 December 2015

20. DPA Damages
• TLT and others –v- Secretary of State for the Home Department
[2016] EWHC 2217
• Home Office publishes quarterly statistics of children with no right
to remain in the UK who are returned to their country of origin
• Two separate tables created one anonymised which is published and
one with personal data which is not published
• In October 2013 the Home Office accidentally published both sets of
tables with details of almost 1600 applications for asylum/leave to
remain. The information was downloaded 27 times in the UK and
abroad and was uploaded onto a US website but subsequently taken
down
• Claims issued by a number of affected individuals and the Home
Office admitted liability
• Court had to determine remedy

21. DPA Damages
• Court distinguished this case from cases involving
deliberate dissemination of private and confidential
information for gain e.g. by media publishers or
individuals
• Court considered that an important factor was loss of
control over one’s private and confidential information
• Court analysed each individual claim and the evidence
before it in respect of each claim and awarded
compensation ranging between £2,500 and £12,500
• Not only were the principles of privacy law individually
considered but the strengths and weaknesses of each
claim were assessed

22. SARs in the Court
• Section 7(9) DPA: court can order a data controller to
comply with a request if considers the data controller
has not complied with its obligations
• Claims increasingly common with parties utilising
heavyweight representation

23. Approach of the Court?
Zaw Lin and Wai Phyo v Commissioner of Police for
the Metropolis [2015] EWHC 2484 (QB)
• Claimants sought report produced by MPS in
connection with investigation by Thai police
• MPS withheld in reliance on Section 29 exemption
(crime and taxation)
• Claimants applied to Court for an order for
disclosure

24. SARs in the Court
Green J held:
• Court’s scrutiny must always be fact and context sufficient
• Court must have regard to all relevant fundamental rights
when balancing the interests of the State and the individual
• Narrower view should be taken of the breadth of discretion
than had been previously adopted (“free and untrammelled
discretion”) – if decided MPS had erred must determine issue
in line with the principles contained in the DPA
• Burden of proving right to invoke exemption falls on data
controller who must do so “with significant and weighty
grounds and evidence”

25. SARs – Disproportionate Effort
Mulcahy v Metropolitan Police Service
• MPS estimated would take in excess of 441 hours/11
weeks to consider all the information held and decide if
it was the claimant’s personal data
• 12,344 pages, 2 minutes per page
• Relied on Section 8(2): disproportionate effort
• ICO fundamentally disagreed with approach taken but
took no action
• Court agreed with MPS on basis of evidence before it

26. Employee Right to Privacy
Barbulescu v Romania (application 61496/08)
• Mr Barbulescu was an engineer and was instructed by
his employer to install Yahoo messenger for work
purposes
• Employer suspected that the messenger service was
being used for personal reasons and monitored his
messages for a period of time without his knowledge.
Employer also carried out a search of his work account
• Mr Barbulescu was dismissed for breach of company
policy and challenged that dismissal through the Courts

27. Employee Right to Privacy
• ECtHR held that an employer was entitled to access
employee’s private Yahoo messages
• Was a work account operated on a work device but sent
messages to fiancée and family, some of an intimate
nature, during work hours
• Company policy prohibited the use of a work account for
personal purposes – B was sacked for breaching the
policy
• ECtHR held that B’s Article 8 rights had been breached
but that the interference was justified
• Not green light to monitor all employee
communications.

28. Subject Access and Litigation
• Gurieva & Anor –v- Community Safety Development
(UK) Ltd [2016] EWHC 643 (QB)
• Defendant was a private investigation company
who had been investigating the Claimants
• Claimants made a subject access request.
Defendant refused in reliance on Section 29 DPA
• Claimants then sought an order from the Court
pursuant to Section 7(9) of the DPA

29. Subject Access and Litigation
• Courts considered the trend towards the use of
subject access requests with a view to litigation to
be “unproblematic”
• Court found that such a motive does not matter
and is no reason to refuse disclosure
• “I have difficulty with the notion that the use of a
SAR for the purpose of obtaining early access to
information that might otherwise be obtained via
disclosure in pending or contemplated litigation is
inherently improper”

30. Subject Access and Fitness to Practise
• Dr DB –v General Medical Council [2016] EWHC 2331
• Patient P complained to the GMC that Dr DB failed to properly
diagnose him with cancer
• GMC commenced an investigation to determine whether FTP
proceedings would be brought and commissioned an expert report into
Dr DB’s treatment of P
• The report found that although the care provided was below the
applicable standard it was not seriously below
• GMC ultimately did not pursue FTP proceedings
• P sought a copy of the expert report by way of a SAR
• GMC sought the views of Dr DB who objected to the release of the
expert report. The GMC ultimately concluded that the report should
be released to P
• Dr DB challenged that decision in the Courts

31. Subject Access and Fitness to Practise
• Court concluded that the GMC, although had conscientiously
carried out the balancing exercise, it had got the balance wrong
• While the expert report contained P’s personal data, the real focus
was on Dr DB’s professional competence;
• GMC failed to give adequate weight to Dr DB’s right to privacy
• The absence of consent meant the GMC should have started with a
presumption against disclosure. An express refusal was an
additional factor in favour of non-disclosure
• The purpose and timing of the request was relevant. The sole or
dominant use was litigation. Report was not sought to protect P’s
privacy by ensuring accuracy of personal data. Disclosure of the
report would mean Dr DB would be deprived of protections
afforded by CPR 31
• Report should not be disclosed.

32. Brexit
• ?
• DPA will still apply to some extent and we will still
be dealing with EU countries
• FOIA will still apply – it’s still Tony Blair’s fault

33. Questions?
Ros Foster
Ros.foster@brownejacobson.com
T: +44 (0)20 7337 1015 M: 07760726726
Megan Larrinaga
megan.larrinaga@brownejacobson.com
T: +44 (0)20 7871 8504 M: 07789942919

34. Prerogative Powers & Article 50
Laura Hughes
20 October 2016

35. Overview
• Overview of prerogative powers
• Article 50 Process
• Exit Methods
• Government –v- Parliament
• Parliamentary Involvement
• The Prerogative
• The Legal Challenge

36. Prerogative Powers
• Powers held by the crown known as Prerogative
powers
– Exercised by ministers of the Crown
– Collection of specific powers; no definitive list
– Prerogative powers are defined judicial decisions
(Case of Proclamations (1611))
• Bill of Rights 1689 and Crown Proceedings Act 1947
– Where statute overlaps, prerogative powers are
suspended.

37. Prerogative Powers (2)
• BBC v Johns (Inspector of Taxes) [1965] Ch 32
– Courts cannot broaden powers beyond existing scope
"It is 350 years and a civil war too late for the
Queen's courts to broaden the prerogative.“
• Blackburn v Attorney-General [1971]
– Treaty making powers of the crown are immune
from interference by the courts

38. Prerogative Powers (3)
• Argued that Article 50 of TEU may be an exercise
of prerogative powers
• International treaties entered into using
prerogative powers
• EU membership by virtue of international treaties
– Use of powers may extend to withdrawal from EU
treaties

39. Article 50 Process
• Treaty of Lisbon 2009
• Article 50 of TEU:
– “own constitutional requirements”
– Notify the EC under Article 50 (2)
• Two year withdrawal deadline; no withdrawal
• Parties must agree arrangements for withdrawal
• Expected March 2017
• Referendum decision does not constitute notice

40. Other Exit Methods
• No clear framework for Article 50
– Article 48 TEU: amending EU treaties, unanimous
agreement from Member States
– Vienna Convention: fundamental change in
circumstances; Article 50 precedent
• Agreed exit method:
– Repeal Bill to repeal the ECA 1972
– Questions remain over the extent of EU legislation to
be re-enacted and for how long

41. Government –v- Parliament
• No codified constitution
– Parliament: primary legislation
– Prime Minister: prerogative power
• Parliament incorporated EU laws- unconstitutional
• Constitutional law- EU law incorporated through
Royal Prerogative

42. Parliamentary Involvement
Attorney General v De Keyser’s Royal Hotel Ltd.
[1920]:
“When the power of the Executive…has been
placed under Parliamentary control, and
directly regulated by statute, the Executive no
longer derives its authority from the Royal
Prerogative of the Crown but from Parliament”

43. Parliamentary Involvement cont.
• R v Secretary of State for the Home Department
ex parte Fire Brigades Union [1995]
– Restrictions on use of Prerogative powers
• EU membership approved under ECA 1972
– Contravenes Parliament’s intention
• Approval of repeal of ECA 1972

44. Parliamentary Involvement cont.
• European Parliamentary Elections Act 2002
• Constitutional Reform and Governance Act 2010
• USA: President may withdraw without congress
approval
• Parliamentary supremacy: modify Royal Prerogative
• European Union Act 2011
– No Parliamentary approval for Article 50
• Political case for involving Parliament?

45. The Prerogative
• Ratification/withdrawal: prerogative power
• Article 50: does not contravene ECA 1972
– Does not frustrate Parliament’s intentions?
• Repealing ECA before withdrawal: breach
• European (Amendment) Act 2008
– Treaty of Lisbon
• European Referendum Act 2015
• Legislation to repeal ECA 1972

46. The Legal Challenge
• R (Santos) v SoS for Exiting the EU
• Cast heard 13, 17 and 18 October
• 3 judge Court – Lord Chief Justice, Master of the
Rolls and Lord Justice Sales
• Leapfrog appeal to Supreme Court – all 11 Judges
sitting in early Dec
• Concessions in the meantime?

47. Questions?
Laura Hughes
E: laura.hughes@brownejacobson.com
T: 0115 976 6582

48. Non-EU Treaty Obligations
Administrative Law
Richard Barlow
20 October 2016

49. Non-EU Treaty Obligations
Overview
• Brexit Models
• Government Procurement Agreement
• European Convention on Human Rights
• The Aarhus Convention
• The Kyoto Protocol and The Paris Agreement
• Convention 108
• Conclusions

50. Brexit Models
• Repealing the European Communities Act 1972
• Vienna Convention 1969
• Different exit options:
– The Norway model
– The Switzerland model
– The World Trade Organisation model
– Others
• The key question is how might existing non-EU
international Treaty Obligations impact post Brexit?

51. Government Procurement
Agreement
• “WTO GPA”
• Public Contracts Regulations 2015
• Rules do not automatically apply to all activities
• Enforcement: domestic review, WTO dispute
settlement mechanism
• An alternative is the United Nations Commission on
International Trade Law (UNCITRAL) which has
produced - 2011 Model Law on Public Procurement

52. ECHR
• EU Convention on Human Rights –v- European
Charter of fundamental rights
• Brexit: EU Charter will no longer be relevant
– Greater protection under the Charter
• Brexit: UK remains a signatory of the ECHR
– Continuing duties under HRA 1998
• Repealing the Human Rights Act 1998; British Bill of
Rights replicating the ECHR

53. The Aarhus Convention
• UK is a signatory in its own right:
– Access to environmental information
– Public participation in environmental decision
making process
– Access to justice
• Environmental Impact Assessment, Strategic
Environmental Assessment and Access to
Environmental Information are all considered to be
required for compliance with the Convention

54. The Aarhus Convention
• UK in breach of Aarhus Convention
– Costs of access to justice
• European Commission v United Kingdom [2014]
– Environmental JR prohibitively expensive

55. The Aarhus Convention cont.
• Jackson reforms to costs
• Brexit: unincorporated treaty
• Compliance: existing EIR regulations or amendment
to FOIA exemptions
• Expectation that as UK is a signatory to this
Convention it will continue to observe its
requirements.

56. Kyoto Protocol
• UN Framework Convention on Climate Change 1992
• Kyoto protocol 1997; reductions to greenhouse gas
emissions
• UK is a signatory in its own right
• The Climate Change Act 2008 implements Kyoto

57. The Paris Agreement
• Combat climate change
• Can be ratified without EU or UK
– 55 countries; 55% of world’s emissions
• UK continues as a party to UNFCCC
• Nationally Determined Contributions
– Separate NDC for UK
– Unless joint EU/UK fulfilment agreement
• https://www.e3g.org/docs/Brexit_and_the_Paris_
Agreement_E3G.pdf

58. Convention 108
• Data Protection Act 1984 to implement
• GDPR due to be in force in May 2018
• The UK remains a member of the Council of Europe
and a party to Convention 108 for the Protection of
Individuals with regard to Automatic Processing of
Personal Data
• Adequacy of data protection
– Implementation of equivalent legislation

59. Environmental International
Protocols
• There are many environmental international
conventions/protocols/agreements
• Highlights include:
• UN Convention on Biological Diversity
• OSPAR Convention
• Berne Convention 1976
• Bonn Convention on Migratory Species 1979
• CITES and CoTES

60. Questions?
Richard Barlow
E: richard.barlow@brownejacobson.com
T: 0115 976 6208

61. Procurement in 2016 and
beyond – current trends,
updates and the impact of
Brexit
Alex Kynoch and Will Thomas

62. Overview
• The UK procurement regime
• Overview of Public Contracts Regulations (PCR)
2015
• Practical advice on how to run a procurement
project
• Energy Solutions EU Ltd v Nuclear Decommissioning
Authority [2016] EWHC 1988 (TC) – how
procurement can go wrong
• Procurement post-Brexit

63. Current UK procurement regime
• What is public procurement?
• Who has to comply with the rules?
• What are the obligations if the Public Contract
Regulations 2015 apply?
• What are the consequences of a failure to
comply?

64. Legislative framework
• Directive 2014/24/EU of the European
Parliament and of the Council of 26 February
2014 on public procurement
• Implemented by Public Contract Regulations
2015 (S.I. 2015/102) (“PCR 2015”)

65. Contracting authorities
• The definition of contracting authorities is wide, including central
and sub-central authorities and bodies “governed by public law”.
• Contracting authorities include:
– Government departments
– Local authorities
– Police and fire authorities
– NHS trusts
– Some non-departmental government bodies
– The House of Commons

66. Which contracts of a contracting
authority are covered?
• The PCR 2015 apply when a contracting authority seeks offers in
relation to:
– A proposed public supply contract
– A proposed public works contract
– A proposed public services contract
– A proposed contract for the provision of certain social or other
specific services
– A proposed framework agreement or dynamic purchasing
system, where the subject matter involves any of the above
• Applies to “public contracts”.

67. Exclusions from the PCR 2015
• Excluded contracts
• Exemptions for public to public arrangements
 In-house awards (“Teckal” arrangements)
 Inter-authority cooperation (“Hamburg Waste”
arrangements)

68. Thresholds
• Works - £4,104,394
• Supply, services and design contracts
– Central government - £106,047
– Sub-central bodies - £164,176
• Light touch – £589,148

69. Abolition of the distinction between
Part A and Part B services
Previously:
– An exhaustive list of Part A services which were subject to the full rigour of
the EU rules; and
– A non-exhaustive list of Part B services that were subject to the EU rules only
to a limited extent
Under the new Regulations (regulations 74 to 76):
– New Regulations provide that all services over relevant financial thresholds
will be subject to full rigour of rules unless they fall within list of services in
Schedule 3 (social, health, education and certain other services) which are
instead subject to a new ‘Light Touch Regime’.

70. Light Touch Regime – when/how will
it apply?
• Special light touch regime applies to contracts for social, health, education and
certain other services with a value over €750,000 (reg 5(1)(d) (set for the UK at
£589,148)
• Regulations take a very minimalistic approach (regulations 75 and 76):
– (Reg 75) Confirms the directive mandatory provisions:
 Contract notice or where permissible under other sections a PIN (with required
information)
 Award notices must be issued
– (Reg 76) No set structure but MUST ensure compliance with principles of
transparency and equal treatment
– Advert (notice or PIN) must confirm:
 Conditions for participation
 Time limits
 The procedure to be applied
– Lists matters which may be taken into account when awarding

71. Award procedure
• Procedures available are:
– Open
– Restricted
– Competitive Dialogue
– Competitive Procedure with Negotiation
– Innovation Partnership
• As to choice of which to use:
– Open, Restricted procedures freely available
– Competitive Procedure with Negotiation and Competitive Dialogue
Procedure in particular situations
– Innovation partnership available where appropriate

72. Structure of a public
procurement (1)
Planning and the business case
Selecting a procedure
Advertisement
Pre-qualification

73. Structure of a public
procurement (2)
Invitation to tender/dialogue/negotiate
Dialogue/negotiation
Bid submission
Evaluation
Award, debrief and contract completion
Contract monitoring and preparing for re-tender

74. Consequences of failure to
comply?
• Proceedings may be brought in the High Court
• The Court can suspend a procedure, set aside a
decision or award damages

75. Practical advice on how to run a
procurement project
• Remember certain key principles:
– Be open and transparent
– Be objective and ensure equal treatment of
tenderers – allow all tenderers a fair and equal
chance of winning the contract
– Be consistent

76. Practical advice on how to run a
procurement project
• The contracting authority needs to ensure it can
demonstrate that it has obtained the best price which
is reasonably obtainable on the sale of any land
• A Council’s best value duty
• State aid
• The Wednesbury reasonableness test
• A Council’s constitution, rules and standing orders

77. Making a decision
• All decisions must be fair, objective and transparent
• Officers must be aware of the need for:
– Disclosure of interests in a bidder and avoiding conflicts
of interest
– Avoiding supplier hospitality
– Maintaining confidentiality
– Keeping clear and accurate records
– Code of Conduct
– Complying with the law
– Reporting any concerns

78. Energy Solutions EU Ltd v Nuclear Decommissioning
Authority [2016] EWHC 1988 (TC) – how procurement
can go wrong
• The procurement exercise for the clean-up of 12
nuclear sites resulted in an incorrectly awarded
contract
• Had the NDA correctly followed its own evaluation
rules, the winning party (Cavendish Fluor Partnership –
CFP) would have been disqualified
• The NDA had manipulated the valuation process to
avoid disqualifying CFP’s bid

79. Energy Solutions EU Ltd v Nuclear
Decommissioning Authority [2016] EWHC 1988
(TC) – how procurement can go wrong
• The NDA had not met its obligations relating to
transparency and equal treatment under the Public
Contracts Regulations 2006
• Applying the correct weighting, the adjusted results
meant that Energy Solutions EU Ltd had submitted the
most economically advantageous tender
• Energy Solutions EU Ltd was entitled to damages as a
result of the errors made by the NDA

80. Woods Building Services v Milton Keynes
Council [2015] EWHC 2172 (TCC)
• Heavily criticised for lack of explanation of scores in
evaluation records – cast doubt on scores awarded
• Court went further in assessing scoring than previous
cases
• Damages available even though contract not awarded –
suggests right to abandon a process is not absolute

81. Standard Selection Questionnaire
• Procurement Policy Note 8/16
• Replaces standard PQQ
• Applies to all contracting authorities
• N/A to health services or works contracts (or goods
& services “needed in relation to the works”)

82. Standard Selection Questionnaire
• Must allow bidders to self-certify
• Must report deviations which are:
– Changes to the standard wording
– Additional questions which aren’t specific to the
procurement in question
• Must use electronic submissions from 18 April 2017

83. Brexit
• Immediate impacts?
– EU law continues to apply until we formally leave
the EU
– Public procurement must continue to comply with
the PCR 2015
– PCR 2015 is UK legislation so will not cease to apply
after formally leaving the EU
– PCR 2015 would need to be specifically repealed or
amended by Parliament

84. Summary of post-Brexit options

85. Post-Brexit Procurement
• Regulated procurement regime is highly likely
• Regulations based on award of public contracts
being:
– Transparent
– Fair
– Accountable (formal challenge process)
• Public appetite for transparency and accountability
• Commercial appetite for fairness and ability to
challenge

86. Brexit conclusions
• Only time will tell
• Until then – business as usual

87. Alex Kynoch
E: alex.kynoch@brownejacobson.com
T: 0115 976 6511
Will Thomas
E: will.thomas@brownejacobson.com
T: 0115 934 2007

88. Public Law: Case Law Update
Ben Standing - Solicitor
20 October 2016

89. Overview
• Judicial Review: Guidance
• Procedure
• Mistake of Fact
• Duty of Candour
• Expert Statutory Decision Makers
• Detailed Reasons
• Without Merit Applications
• Consultation
• Adherence to Policies

90. Judicial Review
New Judicial Review guidance 2016
• “Invaluable roadmap”
• “Good practice is identified”
• Contains details on specific practice points
– Duty of candour
– PCOs and costs

91. Cost Capping Orders
• S88- S90 CJCA 2015 - In force 8 August 2016
• May be granted:
– On application only; permission must have been
granted
– Public interest proceedings
– The claimant would otherwise withdraw
– Reasonable to do so
• Court must have regard to financial resources of
the parties and extent to which claimant is likely
to benefit if relief is granted

92. Procedure (1)
R (Yousuf) v SSFCA [2016] EWHC 663 (Admin)
Background:
• British overseas citizen
• Passport application: ‘fraudulent’ birth certificate
• SoS rejected application without detailed reasons
as to why fraudulent
• Permission to apply for Judicial Review

93. Procedure (2)
• SoS agreed to reconsideration of decision
• Claimant refused to withdraw JR
• Parties agreed a consent order to stay proceedings
• Court refused to grant stay and matter proceeded
to hearing
• Claimant argued: stay claim or decide issues in part
or full

94. Procedure (3)
Decision:
• Claim allowed
– Reasons given were not sufficient
– Original decision must be quashed, new officials to
review the claim
• If stayed, distinction in decision making blurred
• Avoidance of court fee
• Hampered efficient administration of the court

95. Procedure (4)
Impacts:
“Judicial Review did not exist to regulate or
micromanage public authority decision-making, but
to consider the lawfulness or rationality of a decision
which had already been made.”

96. Mistake of Fact
R (Judith Watt) v London Borough of Hackney
[2016] EWHC 1978 (Admin)
Background:
• Planning permission for building next to school
• Error in sunlight and shadow assessment submitted
by applicant. LA relied on assessment to conclude
compliance with sunlight requirement for
playground
• Claimant argued mistake of fact constituted ground
for JR

97. Mistake of Fact (2)
Decision:
• Test applied from E v SSHD. Objective unfairness
from combination of factors
– Mistake of fact created erroneous impression
– Fact was objectively verifiable
– Claimant was not responsible
– Played a material part in reasoning
 Statutory test in Senior Courts Act 1981
• Permission granted

98. Mistake of Fact (3)
Impacts:
• JR not a process suited to mistake of fact
• Not the purpose of the court to substitute its views
for that of the decision maker
• Challenges must be limited to sufficiency of
evidence – otherwise an appeal of a factual
decision

99. Duty of Candour (1)
R (Bancoult (No2)) v SSFCA [2016] UKSC 35
Background:
• Inhabitants of Chagos Islands relocated
• Prohibition on resettlement
• 2000: High Court order lifiting prohibiton
• 2002: Feasibility study, resettlement prohibitively
expensive
• 2004: Order granted prohibiting residence
• 2008: Judicial Review of 2004 order- dismissed

100. Duty of Candour (2)
• 2012: New documents revealed
– Significant doubt on feasability study
• Argued highly likely challenge in 2008 would have
succeeded
• Issue before the court – should the 2008 decision be
set aside on grounds that the Secretary of State
failed, in breach of his duty of candour in public
law proceedings, to disclose relevant documents
which may affect the factual position

101. Duty of Candour (3)
Decision:
• To re-open appeal, clear that a: “significant
injustice has probably occurred and that there is
no alternative effective remedy”; or
• “Powerful probability”;
• Application dismissed: different outcome not
probable, or likely

102. Duty of Candour (4)
Impacts:
• Matter of good practice to disclose significant
documents
• Ongoing duty of disclosure
• Full and frank disclosure
• Order for specific disclosure where inaccurate,
inconsistent or incomplete evidence

103. Expert statutory decision makers
R (Nigel Mott) v Environment Agency [2016] EWCA
Civ 564
Background
• Catch limit imposed to protect salmon fisheries in
River Wye
– Limit reduced leaseholder’s catch by 95%
• First instance decision held that decision was
irrational and the limit unlawfully interfered with
leaseholder’s ECHR Protocol 1, Art.1, rights

104. Expert statutory decision makers
(2)
Decision:
• Statutory decision makers are to be accorded an
enhanced margin of appreciation
• Must give sufficient explanation of how the science
relates to its decision to enable to the court to
determine whether the statutory decision maker
had erred in law or abused its discretion
• Compensation required for loss of right

105. Detailed Reasons
R (CPRE Kent) v Dover District Council & China
Gateway International Ltd [2016] EWCA Civ 936
Background
• Appeal against refusal of JR of LPA’s grant of
planning permission for development in AONB
• Planning officer’s report considered proposals
would have significant detrimental impact, but
suggested modifications
• LPA granted unmodified application
• Claimant argued LPA not given adequate reasons

106. Detailed Reasons (2)
Decision:
• Parties are entitled to know reasons for a decision
even if not made by a minister or inspector
• If departing from the planning officer’s
recommendations, LPA must engage with the
officer's reasoning
• LPA had not fulfilled statutory duty under TCP
Regulations 2011, Regulation 24(1)(c)

107. Detailed reasons (3)
“The degree of particularity required depends
entirely on the nature of the issues falling for
decision”
• Not imposing in general an onerous duty on LPAs to
give reasons for the grant of permissions
• However demonstrates need for detailed reasons in
particular cases
• Need to be sufficient to explain why rational
decision made

108. Without Merit Applications
Samia Wasif v SSHD [2016] EWCA Civ 82
Background:
• Refused application for permission to seek JR -
certified as totally without merit
• Appeal to Court of Appeal
• Court of Appeal gave guidance on when to declare
an application for JR as ‘totally without merit’

109. Without Merit Applications (2)
Decision:
• Difference: “not arguable” and “bound to fail”
– Waste of court resources if bound to fail
• Won’t certify without merit unless bound to fail
– But should feel no inhibition about certification
• Judges must give adequate reasons, both for
permission and separately for why the case is
totally without merit

110. Without Merit Applications (3)
Impacts:
• Subtle but real distinction: refused permission v
totally without merit
• Without merit used in limited circumstances
• Test used on a case by case basis
– Difficult to apply in practice
• Claimants should be given chance to answer new
points raised in summary grounds of resistance

111. Consultation
Bokrosova v London Borough of Lambeth [2015]
EWHC 3386 (Admin)
Background:
• Regeneration/ refurbishment of housing estate
• S105 Housing Act 1985: obligation to consult
• Published detailed consultation programme on
regeneration and refurbishment options
• Withdrew consultation on refurbishment options
• Challenged by tenant. Breach of Housing Act 1985

112. Consultation (2)
Decision:
• Council acted unlawfully as had published a
detailed and sophisticated programme of
consultation. Its decision not to complete the
consultation in relation to the refurbishment
options reneged on that programme
• No sufficient change of circumstances to justify
ceasing consultation
• Not highly likely that the outcome would have been
the same

113. Consultation (3)
Impacts:
• Carefully plan consultation
• Once publicised, should normally follow agreed
steps
• May be entitled to amend consultation if sufficient
change of circumstances

114. Adherence to Policies
Mandalia v Secretary of State of the Home
Department [2015] UKSC 59
Background:
• Supreme Court decision on application of policies
• Policy document
– Flexibility for case workers to request a document
they had reason to believe existed, if that document
would lead to an approval being given
• Internal policy not followed

115. Adherence to Policies (2)
Decision:
• An individual has a basic public law right to have
his or her case considered under any policy that
has been lawfully adopted by the executive, unless
there are good reasons for not doing so
• Argument that statements were not missing from a
series were at a high level of pedantry
• Decision to refuse application, without asking for
missing information, had been contrary to policy
and unlawful

116. Adherence to Policies (3)
Impacts:
• Importance of public body’s adherence to policies
unless good reasons for not doing so
• Claimant entitled to rely on policy irrespective of
knowledge

117. Questions?
Ben Standing
E: ben.standing@brownejacobson.com
T: 0115 976 6200