Local government update

Regulation

Freedom of information

It has been a challenging year in the world of freedom of information, with failed attempts to exempt MPs from its ambit and revise the fees regulations. The Act is here to stay and it looks like it is about to dig even deeper.

Wragge & Co's IT specialists reported on a Ministry of Justice consultation to extend the definition of "public authority" into the private sector. It seems likely that this will go ahead. Decisions by the Information Commissioner and Tribunal have seen the Government required to disclose information including legal advice from the run-up to the Iraq war and details of MPs' expenses. But freedom of information doesn't need to be a minefield.

Remember:

• Information must be recorded to fall under the Act. You don't need to create information, and it doesn't cover what is in your head!
• The exemptions are complex and the public interest test hard to apply. Don't rely on them when creating information.
• If you don't hold the information, you can't disclose it. So:
  • if possible, don't record information which shouldn't be disclosed
  • only collect the information you need
  • never destroy information which is the subject of a request (it's a criminal offence), but apply appropriate document destruction systematically
• Don't let the Act get in the way. If you would have provided information before the Act, don't consider exemptions now.
• You can use the Act as well! If it is extended to the private sector, consider when making a request may be to your benefit.
  

Corporate manslaughter

Local authorities will be more vulnerable to prosecution where their actions or omissions cause a death, under new Corporate Manslaughter and Corporate Homicide Act, which comes into force on 6 April 2008. For councils engaged in construction projects, it will be more important than ever to ensure compliance with health and safety laws and with the Construction, Design and Management Regulations 2007.

Take a look at Wragge & Co's analysis of the Corporate Manslaughter and Corporate Homicide Act 2007 and a reminder of the actions you should consider taking. Regulatory litigation specialists have also prepared a full analysis of the CDM Regulations.

Employment

Unitary status - staffing

Now that parliamentary approval has been granted for new unitary authorities in Cornwall, County Durham, Northumberland, Shropshire, Wiltshire and Cheshire, the complex task of getting the new councils up and running is under way. With the new authorities taking on the reigns of power from April 2009, the timetable is tight.

Of fundamental importance will be the question of how the new unitaries are to be staffed. While the majority of employees will transfer under TUPE or arrangements equivalent to TUPE, if Communities and Local Government is to be believed, the recruitment of chief executives and possibly chief officers will be open to free competition.

Some staff will find that their old jobs no longer exist and that equivalent openings in the new unitary are not on offer. The Government's ambition to create new authorities staffed with a 'hand picked' team is laudable and well understood.

However, the discontent with existing TUPE and redundancy rights is very marked. In the absence of primary legislation, it is hard to see how the legal rights of those individuals can be reconciled with the ministers' aspiration.

Nor does much thought appear to have been given to the local government reorganisation in the 1990s. The CLG appears to have forgotten all the learning from the last round, leading to many of the same mistakes being made, as well as a batch of new ones!

With issues of equal pay comparators, pensions strain and employment claims, converts will need urgently to review their redundancy policies once the new regulations are published.

Is harassment the new workplace stress claim?

An individual claiming to have suffered personal injury as a result of workplace harassment has a number of potential claims against their employer. These are breach of contract, personal injury, discrimination and a vicarious strict liability claim under the Protection from Harassment Act 1997.

The Act was originally introduced as a means of providing protection to victims of criminal harassment. However, the perception that claiming under the Act would avoid many of the difficulties associated with alternative routes to compensation meant that it has been used by employees bringing civil claims against their employers. This culminated in 2006, with the House of Lords decision in Majrowski.

The Court of Appeal has begun to stem the flurry of claims under the Act, following a decision in Conn v Sunderland City Council. The Court of Appeal found that in order to bring a successful vicarious claim against an employer, a claimant would have to show that the incidents complained of were of such gravity as to justify the sanctions of the criminal law.

In spite of Conn, the pursuit of such claims under the Act remains open to employees experiencing workplace harassment. Employers need to have robust anti-harassment policies and ensure that any incidents of harassment are dealt with appropriately.

You can find out more with Wragge & Co's analysis of the issues and cases related to the Harassment Act. The firm's employment experts have also put together some Harassment Act action points relevant to you and your organisation.

Pensions

All Change! The new-look LGPS

Despite Communities and Local Government's promises to have regulations a year in advance, the final form administration, benefit and transitional regulations were very late in coming. This uncertainty has increased the challenges on administering and employing authorities in implementing the revamped Local Government Pensions Scheme.

Key challenges over the coming months are going to be communicating what the new scheme means in practice for members, especially in relation to the allocation of contribution bands. Authorities are also going to have to grapple with the new tiered ill-health benefits, as the first cases under the new regime start to come through.

As well as the new benefit structure, administering authorities must also comply with the additional governance requirements and publish a governance compliance statement in line with the guidance from CLG.

CLG intends to issue a consultation document on how a cost sharing mechanism could operate in the LGPS with a view to the Secretary of State issuing statutory guidance before 31 March 2009. There is also increased interest and issues arising over the participation of private contractors in the LGPS through admission agreements and CLG are consulting on this.

Be prepared for these changes and keep the LGPS on your radar! Read Wragge & Co's analysis of the implications of admitted body status. You could also take a look at more detailed information on the new ill-health pension benefits.

Construction

New regulations for construction and design professionals

The new Construction (Design and Management) Regulations 2007 have been introduced to raise the level of professional competence and accountability in public sector contracts.

Councils must now ensure that their proposed CDM coordinator, designers, principal contractor and contractors are competent, adequately resourced and appointed early enough for the work they have to do. In turn, these professionals must assess their own competency as they cannot accept an appointment unless they are competent to do so.

The new competency test will also bite on any appointment of a planning supervisor or principal contractor under the old 1994 Regulations. Unless that appointment was terminated or a new appointment agreed it is immediately transformed into an appointment as CDM Co-ordinator or principal contractor under the 2007 Regulations.

However, transitional provisions allow one year for such parties to become competent in accordance with the 2007 Regulations and for clients to take reasonable steps to check their competence. This period expires on 5 April 2008.

The Health and Safety Executive can bring prosecutions against clients who have failed to assess, or have not properly assessed, either the competency of those they appoint or those previously appointed under the 1994 Regulations, and to which the 2007 Regulations now apply.

Actions can also be brought against those duty holders who have taken on an appointment and are not competent to do so (including those originally appointed under the old 1994 Regulations who have failed to achieve the new standards required by the 2007 Regulations).

The crucial importance of ensuring compliance with the CDM Regulations is underlined by the Corporate Manslaughter and Corporate Homicide Act 2007.

Wragge & Co's construction and reulated litigation experts have compiled an analysis of how competence should be assessed under the new regulations and more about the Corporate Manslaughter and Corporate Homicide Act 2007.

Professional appointments

Local authority lawyers can have a bewildering variety of forms of professional appointments pass over their desks. They can be asked to form rapid opinions about the relative merits of those documents. How can they judge the comparative strength of appointments when they can differ so much in terms of structure, origin, length and drafting?

The key is to have a mental checklist that covers which clauses are 'must haves' (and how those should be drafted to afford the authority maximum protection), and also which limitations of liability and exclusions of loss a consultant may try to introduce into an appointment.

Wragge & Co's Construction team has prepared a checklist to make appointments more digestible. It also provides the latest market thinking on which caps and exclusions on liability are less objectionable than others and how they should best be drafted to provide maximum protection to an authority.

Governance

Implementing the 2007 Local Government and Public Involvement in Health Act

The importance of establishing and maintaining good governance at a local level is highlighted in 'The Governance of Britain' green paper and the Local Government and Public Involvement in Health Act 2007.

The 2007 Act requires a fundamental review of arrangements for political governance and support for councillors as democratic champions. The creation of 'executive ward councillors' as well as still further joint and partnership arrangements will require an overhaul of the ethical governance framework, with councils taking charge of conduct issues locally.

This will also require the selection and appointment of more independent members and chairs of standards committees to enable your standards committee to be ready to assess, review, and hear complaints of breaches of the new code of conduct.

The Ethical Governance Team at Rockpools can contribute legal and policy expertise to help you and your councillors prepare for their new responsibilities. It provides bespoke training on the new code of conduct, the local filter, investigations, hearings and mediation and support for local investigations.

For more information contact claer.lloyd-jones@rockpools.co.uk.

Litigation

Snooper's charter and privilege

Did you know the public can access your court documents including those lodged in judicial review proceedings or the Employment Tribunal? For reasons of 'open justice' non parties are entitled to obtain copies of documents on the court file without the court's permission and without notifying the parties to the litigation unless the parties take steps to prevent such access.

The decision in Corner House Research v Director of Serious Fraud Office confirms that judicial review proceedings do not fall outside the scope of the access provisions. A non party to such proceedings can have access to the acknowledgement of service and detailed grounds for contesting the claim form as well as the claim form itself.

On the subject of keeping communications confidential, questions of privilege continue to surface on a regular basis.