Local Government Lawyer magazine issue 23

LOCAL GOVERNMENT LAWYER REUTERS/Luke MacGregor

ISSUE 23

THIS ISSUE’S FEATURED ARTICLES:

Payment by Results Contracts Prospects for codifying the relationship between central and local government SWEET & MAXWELL

MENTAL HEALTH ACT MANUAL 16TH EDITION Richard Jones OUT NOW

The Mental Health Act Manual is your indispensible guide to the Mental Health Act 1983. Written in a clear practical style, it provides easy access to the law regarding mental health plus explanatory commentary to help ensure that the law is fully understood.

Among the new developments incorporated in the 16th edition are: • Significant amendments made to the Act and its associated Regulations by the Health and Social Care Act 2012 • Amendments made to the Tribunal Rules by the Tribunal Procedure (Amendment) Rules 2013 • The enactment of the Mental Health (Approval Functions) Act 2012 • The Secretary of State’s “Mental Health Act 1983 – Instructions with respect to the exercise of Approval Functions 2013” • Amendments made to the High Security Services (Arrangements for Safety and Security at Ashworth, Broadmoor and Rampton Hospitals) Directions 2011 The Mental Health Act Manual will also publish as an eBook on Thomson Reuters ProView™ giving you insight and guidance on judicial review you can trust, with the flexibility and tools of ProView™.

For a full list of updates and features please visit sweetandmaxwell.co.uk

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WELCOME

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

We are please to announce that Kirsten Maslen, who is part of the Public Sector editoral team at Practical Law, will now be a featured writer. In this issue Kirsten has written an article on payment by results (PbR) contracts. We also have an article from Chris Himsworth who looks at the prospects for codifying the relationship between central and local government.

Ian Mason and Anne Wright from Warrington Borough Council discuss the challenges (and successes) of recent restructing within the council. We also have a feature on Practical Law Family, a new know-how service for family lawyers.

Emma Wilkins, and Chris Knuckey from Practical Law discuss the new service and how it can benefit local government lawyers.

Finally, Adrian Carr, general editor of Service Charges and Management, published by Sweet & Maxwell talks about the new edition and his general working practice.

LOCAL GOVERNMENT LAWYER ISSUE 23 in this issue: 4 LOCAL GOVERNMENT NEWS 6 ARTICLE: Payment by Results 12 Focus on... Warrington Borough Council 15 ARTICLE: Prospects for codifying the relationship between central and local government 2003 19 UPDATE FROM WESTLAW UK AND LAWTEL 22 introducing Practical Law Family 24 BOOKSHOP 26 LOCAL GOVERNMENT LAW AT YOUR FINGER TIPS 28 PROFILE: Adrian CarR 30 YOUR THOMSON REUTERS SALES CONTACTS

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 26.

Enjoy the issue

Jonathan Chilton Editor

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NEWS

WESTLAW UK UPDATE REUTERS/Mohsin Raza

Since our last update, the Westlaw UK team at Thomson Reuters have been busy launching new enhancements and content, including BETA testing for our new mobile web app, the addition of filtering options to your search results and changes to Insight which we hope will make your research that little bit easier.

As always our cases, legislation and annotations teams have been working hard and we’ve also added some new titles to our books and looseleafs library.

Mobile Web App Westlaw UK have recently launched a BETA version of our brand new mobile web app.

The Westlaw UK mobile web app, has been created for quick searches and referencing across cases, legislation, journals and current awareness content, when you’re out of the office, on the move and when you haven’t the time or availability of your desktop or laptop.

Volunteers required We are looking for willing participants, who would be interested in registering to test the BETA version and come back to us with any feedback and suggestions.

If this sounds like something you would be interested in testing, you can register by visiting westlaw.co.uk and following the link on the home page.

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Search filtering Throughout 2013 Westlaw UK has made a number of enhancements to our search functionality including suggested terms and relevancy ranking.

The latest enhancement to Westlaw UK search is the introduction of filtering to search results.

Giving you a more intuitive way to search, the new search filtering enhancement will let you refine results, saving time and effort. Filtering is applied across all of Westlaw UK (excluding books and EU), offering content type specific search results with extended filtering options.

Westlaw UK Insight Our Insight homepage has had a slight change made to ‘watched topics’. To make your research easier, we have renamed ‘Watched Topics’ to ‘Bookmarks’. Therefore when you bookmark a topic (by clicking the star in the top right hand corner of your screen), it will now appear on your Insight home page under the heading ‘Bookmarks’. Our Insight contributors have also been busy again with more than 70 new articles launching since June.

Books and Looseleafs Westlaw UK have also recently launched six new book and looseleaf titles including Mitchell, Taylor and Talbot on Confiscation and the Proceeds of Crime, Modern GATT Law, Prescription and Limitation of Actions, The Law of Agency in Scotland and, Vinter: Project Finance, plus we have a number of titles planned to launch before the end of the year.

Developments in Highway Law The latest edition of the popular and well-established practitioner text Highway Law, publishes later this year. The new 5th edition supplies a detailed and practical commentary on the law relating to the creation, development and ownership of highways, including the powers and duties of highway authorities, the rights of users of the highway and of those who own land around the highway.

It looks at the changes brought about by the Localism Act 2011 and the extension of the right of access to open land to coastal land and margins.

It also examines new case law on usage “as of right”, the right to protest on the highway and the right of access to the highway as well as offering clarification as to the powers and responsibilities of

the highway authority arising from their ownership and control.

Highway Law by Stephen Sauvain QC will be published by Sweet & Maxwell in December, priced £175.

For more information and to order your copy visit sweetandmaxwell.co.uk

UPCOMING SWEET & MAXWELL CONFERENCES Judicial Review Conference 2013 THURSDAY 21 NOVEMBER 2013 Bloomsbury Hotel, 16-22 Great Russell Street, London WC1B 3NN This annual conference offers a complete and practical analysis on the key cases, legal arguments and strategies in judicial review and their likely affect on practitioners in the field.

Criminal Law Review Conference 2013 FRIDAY 6 DECEMBER 2013 Cavendish Conference Centre, 22 Duchess Mews, London W1G 9DT Hear from distinguished criminal experts on emerging case law, important legislative developments and changes to rules and practices. Expert speakers will offer practical insight into tackling the latest legal issues and challenges, allowing you to clarify new legal concepts and walk away with a more robust practice.

For further information or to register, visit: sweetandmaxwell.co.uk/conferences-events

THOMSON REUTERS ANNOUNCES LAUNCH OF PRACTICAL LAW FAMILY Thomson Reuters, the world’s leading provider of intelligent information for businesses and professionals, recently announced the launch of Practical Law Family, an essential online resource for family lawyers. The new service is available through the recently redesigned practicallaw.com, the UK’s leading source of legal know-how solutions.

For more than 20 years, Practical Law has provided trusted resources for lawyers seeking practical legal know-how. Practical Law Family builds on this heritage to bring lawyers a wealth of material consisting of more than 950 resources of which around 850 are entirely new.

Practical Law Family is designed to help family lawyers working in large and small law firms draft documents quickly and advise with confidence. It provides access to a bank of continually maintained standard document precedents, letters and clauses, including pre-nuptial and cohabitation agreements, consent order clauses and editable court forms. In addition to the high-quality legal know-how

expected from Practical Law, the Family Law launch includes an interactive Form E software tool. The interactive Form E financial statement, complete with inbuilt calculators and integrated drafting notes, allows lawyers to import information from their client, or other third parties, and get financial issues underway more quickly.

“The launch of Practical Law Family provides family lawyers with instant access to the legal tools and resources they need every day,” said Emma Wilkins, head of Practical Law Family at Thomson Reuters Legal Solutions UK & Ireland. “It is fully integrated with the Practical Law online UK service and comes loaded with the essential practice specific documents and tools that will likely make it a one-stop shop for busy family law practitioners.”

Practical Law Family is accessed through practicallaw.com, recently redesigned to provide a cleaner and more intuitive interface. The new service also offers enhanced navigation and searching to deliver a more finely-tuned source of essential legal know-how.

REUTERS/Steve Crisp

The Family Law guidance covers a wide range of topics including nuptial agreements and relationship planning through to cohabitation, divorce and dissolution of civil partnership (including financial remedies), children law, domestic violence and international aspects of family law. It also covers more niche topics such as surrogacy, forced marriages, child abduction and international adoption.

Turn to pages 18 and 19 for more information on Practical Law Family including an interview with Emma Wilkins and Chris Knuckey, Head of Practical Law Public Sector.

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Payment by Results Kirsten Maslen

Under pressure from budget cuts and the need to evidence that public funds actually deliver results, local authorities are looking into the possibility of using payment by results (PbR) contracts.

The origins of PbR can be traced to the introduction of the fee-for-service model, known as the Tariff, in the NHS in 2005-6. It aimed to link payment to hospitals to specific activity. Since then, PbR has been used in welfare to work schemes, offender management and social care and children’s services. However, its meaning can differ depending on the context in which it is used.

The term payment by results now encompasses a large variety of arrangements for the delivery of public services. And in the social care, unemployment and offender management sectors it means payments for social, economic or behavioural outcomes.

In July 2011, the government published its Open Public Services White Paper. The aim of the White Paper was to set out the government’s vision to open public services to a range of providers, condensed into five main principles: •

Public services should be decentralised to the lowest appropriate level.

•

Public services should be open to a range of providers.

•

We will ensure fair access to public services.

•

Public services should be accountable to users and to taxpayers1.

PbR is seen as a key way of delivering transparency, accountability, innovation and value for money: “Open commissioning and payment by results are critical to open public services. This is not just about opening up services to competition; it is also about empowering all potential providers, from whichever sector, with the right to propose new ways to deliver services, and linking payment to results so that providers are free to innovate and eliminate waste.

And it is about getting good value for money for taxpayers, so that we no longer tolerate mediocrity and pay even when services are of poor quality2. aragraph 1.9 Open P Public Services White Paper, July 2011 2 Paragraph 5.4, ibid 3 Paragraph 5.12, ibid 1

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(...) it is not enough to pay someone to provide a service with the only recourse being that if they fail they will not be re-awarded the contract. In these cases it makes sense to build in an element

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of payment by results to provide a constant and tough financial incentive for providers to deliver good services throughout the term of the contract.

This approach will encourage providers to work more closely with citizens and communities to build services that are both more efficient and qualitatively different, orientated around individuals and communities in ways that foster mutual support, respect and, where possible, self-help3.”

The government’s commitment to PbR has translated into a number of innovative projects, including the Work Programme and the use of Social Impact Bonds (see below).

What is Payment by Results?

PbR typically has the following features: •

The service provider is paid only if preagreed outcomes are achieved. This can be immediately apparent or take a long time to realise.

•

The provider decides how the outcomes are achieved. The specification for the service will therefore be relatively light- an expression of the outcomes may be all that’s required, for example, a percentage reduction in unauthorised absences from school, as in the Troubled Families programme.

•

Objective data determines whether (and how much of) the contract price is payable.

payment

REUTERS/Toby Melville

The benefits of using PbR are: •

The provider bears the performance risk. If it does not perform well, it will not get paid.

•

It represents value for money and accountability as the public body only pays if the service delivers.

•

It enables more freedom on the provider to innovate. The idea is that if the provider bears the risk, they decide how to achieve the outcomes with as little prescription as possible from the commissioner. So the specification for the service will be very pared down, expressing the outcomes may be enough.

Spotlight on the Work Programme The Work Programme, launched in June 2011, aims to enable the long-term unemployed back into work.

The payment is composed of three elements: •

Attachment fee: a fee for service component to providers of £400-600 in year one, reducing to nothing in later years of the contract, claimed when a participant joins the programme.

•

Job outcome fee: a PbR component of £1,000-3,500, claimed after a participant has been in work for three or six months.

•

Sustainment payments: a PbR component of £2,200-9,600, claimed for up to two years for every four weeks that a participant remains in work4.

The model therefore places considerable risk on providers for as long as two years after service commencement. http://data.gov.uk/sib_ knowledge_box/paymentresults-history 5 Does sector matter?

Understanding the experienced of providers in the Work Programme, James Rees, Rebecca Taylor and Chris Damm, Third Sector Research Centre (February 2013) 4

In addition, payments were weighted depending on the benefit the participant had been claiming, with enhanced payments for those considered hardest to place. However, in spite of those additional incentives, the model has raised complaints of “creaming and parking” (see below), the practice of focussing services on those most likely to be placed, and therefore to trigger payment, and ignoring those hardest to place.5

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payment

Ways of incorporating PbR into social care contracts PbR can be understood on a spectrum. Many arrangements use PbR for only part of the contract price through paying bonuses or withholding part of the payment to incentivise performance. The following mechanisms may be used (in descending order of risk to the provider): •

All of contract price at risk, that is, if the outcomes are not achieved no payment will be made (for example, some Social Impact Bonds and the later contract years of the Work Programme);

•

Some payment up front to represent mobilisation costs then payments for outcomes (for example, the initial contract period of the Work Programme and the Troubled Families programme).

•

A specified percentage of contract price at risk (for example, the Doncaster prison contract, in which 10% of the fee is paid if there is a specified reduction in reoffending results after 3 years compared with national average).

•

Service credit schemes (as is common in IT and other back office services contracts).

•

Bonuses/ service debit schemes, in which exceptional performance is rewarded with additional payments.

An element of risk and reward reflected in a contract pricing structure is common and relatively uncontroversial. However, when a considerable part of the contract price is at risk, certain challenges arise.

Spotlight on the Troubled Families Programme The Troubled Families Programme, commissioned by local authorities, aims to improve the outcomes for troubled families. The government funds of 40% of cost of intervention (and assumes each family needs £10,000 of intervention).

Part of the payment is paid upfront and part on achievement of the outcomes. The upfront fee compared with the outcome payment reduces over the programme as follows: •

2012/13 80%/20%

•

2013/14 60%/40%

•

2014/15 40%/60%

The average time between starting intervention and receiving remainder of payment is 12 months.

Outcomes relate to improving children’s attendance at school, reducing offending and anti-social behaviour and helping people back into work. However, to get the full payment, the following must be achieved: •

Children must attend and behave at school, measured by less than 15% unauthorised absences in last three school terms, and fewer than three fixed term exclusions; AND

•

60% reduction in anti-social behaviour across the family in last six months AND

•

Offending rates of all minors in family reduced by at least 33% in six months; AND

•

Either one adult in the family has volunteered for the Work Programme or is attached to the European Social Fund Provision.

OR •

At least one adult is off benefits and has been in work for six months.6

A cursory glance at the model would tend to suggest that it would be more cost effective for a provider to focus their services on helping one adult back into work than on interventions designed to address truancy or anti-social behaviour across the whole family. In this way, the Trouble Families Programme risks becoming an extension of the Work Programme. However, it remains to be seen how the payment structure is understood and interpreted on the ground.

Challenges arising from PbR The extent of the challenges arising from a PbR arrangement depends on many factors, the most important of which are: 6

ttps://www.gov.uk/ h government/policies/ helping-troubledfamilies-turn-their-livesaround

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•

The availability of clear and accurate data that will enable the outcome to be precisely defined and measured.

•

The amount of the contract price that is at risk.

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If more than the provider’s margin is at risk, and the provider is therefore being asked to fund all or part of its operating costs, the risk profile shifts and may have a significant impact on which organisations can bid and the ultimate cost of the service.

The risk increases with an increase in time between service commencement and the date on which it is clear that the outcomes have been achieved and the payment for the achieved outcome is made. This may be why many projects that rely on a PbR mechanism in this sector are relatively short term, for example, the Troubled Families programme expects to see results within a year.

The key financial challenges include: •

Cash flow: Many providers in this sector will not be able to finance the whole or a significant part of a service themselves. They may therefore be prevented from bidding for it, or will access finance externally. The cost of that finance will be built into the contract price.

Spotlight on Social Impact Bonds One way of addressing the cash flow problem in PbR contracts is through using a social impact bond (SIB). A SIB is not a bond as commonly understood. It is a funding mechanism whereby social investors fund a civil society organisation to deliver outcomes under a contract with a public sector commissioner. If the outcomes are met, the social investors are repaid their investment plus a return.

SIBs have been used in various projects including: Peterborough prison SIB The Peterborough SIB represents an innovative approach to offender management.

The service provides interventions for male prisoners on sentences of 12 months or less at HMP Peterborough and provides support before and after release with mentoring and connecting them to services.

Payments are made when there is a reduction in reconviction rates in the 12 months after the release.

The aim is to secure a reduction in reoffending of at least 10% in any of the three cohorts or, if a 10% reduction is not achieved in any cohort, payments will be made if there is a 7.5% reduction overall.

Preliminary results suggest that since the start of this pilot scheme in 2010, reconviction rates have fallen from 40.3% to 38.6%, a reduction of 2.9 percentage points7. The cost of the pilot service is approximately £1,700 per person.8 “It’s All About Me” It’s All About Me is a national SIB to help with finding and supporting volunteer families for hard to place children. The service provides therapeutic training and 24 hour support for two years after the placement to reduce the risk of it failing.

The local authority pays a fixed price; payable in 4 instalments: two pre-placement and two postplacement. But the authority only pays for milestones which are achieved, so if the placement breaks down, they would not pay those post-placement instalments. The cost over two years is £54,000 per child, or half of what it would cost if the child remained in care.

aying for Results?

P Rethinking probation reform, Ian Mulheirn, Social Market Foundation (August 2013) 8 ibid

•

Price-setting: It can be difficult to determine the appropriate price in a PbR arrangement. Does it reflect cost of service, plus margin (plus the cost of finance); or the savings that will be generated if outcomes are achieved? For example, it may be relatively easy to quantify the immediate costs of a child being taken into care but what is the cost (financial and in terms of well-being) of avoiding that outcome? The long-term impact may not be known for many years; and the savings may accrue to a different part of the public sector from the commissioner’s. It is therefore easier to focus PbR on services which deliver demonstrable cashable savings quickly, such as a reduction in reoffending, for example, as opposed to an increase in breast-feeding.

•

Who commissions for individuals with complex needs and who pays for their outcomes, for example, individuals coming out of prison claiming benefit and with drug & alcohol problems. The organisation that pays may not be the one that benefits the most. This could mean more multi-agency working.

•

Balancing incentives against the pressure on public purse. If a bonus scheme is used, overperformance can mean over-payment. Bonus schemes should be modelled appropriately and capped.

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•

Financial incentives are not the only way of incentivising the delivery of quality services.

For example, where the provider is gaining enough profit from the arrangement already, any bonus may be icing on the cake that it is too difficult to pursue. Furthermore, much of what works in health and social care is due to dedication of employees who may not be incentivised by (or receive any of the) financial reward. How is that drive maximised/rewarded?

•

Future costs must be reflected in long-term planning. In other words, the commissioner may be deferring payment now for a bigger payment later.

•

Risk of provider failure may be higher due to cash flow risk. The commissioners must plan for contingencies.

Spotlight on offender management Ministry of Justice probation reforms One of the central planks of the Ministry of Justice’s (MOJ) planned reforms to probation services, Transforming rehabilitation, will be “new payment incentives for market providers to focus relentlessly on reforming offenders”9.

In May 2013, the government published its proposed outline payment mechanism for probationary services, which aims to pay for the service delivered and also provide additional reward payments to providers that demonstrate a reduction in reoffending rates, compared with the baseline, and to claw back part of the service fee from those providers whose services result in increased offending.

The model allows for a statistical uncertainty zone, a standard deviation either side of the baseline within which fluctuations in offending rates will not be rewarded or penalised. The statistical uncertainty zone is intended to remove the risk of rewarding or penalising random results. The size of the zone will vary, sometimes substantially, depending on the contract package area concerned depending on the degree of improvement that would need to be evidenced to provide certainty that reoffending had been cut. The ranges may vary from a 6.3 percentage point reduction in Staffordshire and the West Midlands, to a 1.3 percentage reduction in London10.

The result of this is that providers that invest and achieve results will not be rewarded for those results unless they exceed the limits of the uncertainty zone. Similarly, providers who do not invest in their services will not be penalised unless their reoffending rates fall outside the zone. This could mean that providers investing in services could be worse off if they spent nothing at all11.

Furthermore, on an estimate of the MoJ’s available budget, only between a half and a quarter of the investment made at Peterborough (see above) would be available for these wider reforms. As the costs of providing interventions for more prolific offenders is likely to increase, it is even less likely that providers will achieve results which exceed the uncertainty zone and thus result in additional payments.12 The Social Market Foundation’s analysis of the MoJ’s proposed model for its reforms of probation services highlights the importance of financial modelling to identify any perverse incentives, and also the need to calculate the payments required to incentivise investment in services.

How are outcomes defined and measured? http://www.justice. gov.uk/transformingrehabilitation 10 Paying for Results?

Rethinking probation reform, Ian Mulheirn, Social Market Foundation (August 2013) 11 ibid 12 ibid 9

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Defining outcomes can be tricky. There is a risk that poorly defined outcomes will drive the wrong behaviour, for example by incentivising activity, for example numbers of service users on a particular programme rather than outcomes, that is, the benefits of participation to the service user.

Certain outcomes may be more easily achievable with certain client groups. One often cited consequence of the payment structure in the Work Programme is the practice of “creaming and parking”, in which the provider focuses more of their attention on those service users with whom they are most likely to achieve the outcome leaving others, who may require more intensive interventions, with little or no support (see above).

Payment mechanisms, or other performance mechanisms, must therefore be adapted to address these service specific issues.

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Payment

Lack of quality data makes defining outcomes tricky. The problem is particularly acute in the social care sector in which it is more difficult to articulate what success looks like. Many outcomes, for example around well-being, seem to defy objective measurement. This may lead to arrangements for which the first years of the contract are about establishing a baseline against which outcomes achieved in later years are measured, though this brings contractual, and potentially procurement, risks.

Some of the other challenges include: •

Causation or “deadweight”: The outcomes may have occurred anyway, without the service, for example, a scheme funded to encourage people back into work may achieve its outcome, that is, a percentage of long-term unemployed back in employment, but this could be due to wider economic factors rather than anything the provider did. Similarly, a smoking cessation service may achieve results due to a rise in cigarette prices. These variables can be taken into account in some ways by benchmarking the provider’s results against national averages or local averages, but as the metrics have to be agreed in advance, it will be difficult to foresee what external influences might affect the outcomes in the future.

•

Attribution: What if multiple providers are involved? Who gets the payment? Whose intervention made the difference?

•

Administrative pressures: PbR contracts can be burdensome. For example, reporting requirements might be onerous, and the relationship between the outcome and payment may be overly complex.

Measurement must be integrated into an organisation’s own governance and processes, not be an addon, providing an extra layer of bureaucracy. Ideally, the reporting draws on information that is already generated, for example for statutory or audit purposes.

•

Displacement: Where achieving outcomes in one area may shift the problem to another, for example, crime reduction initiatives or reducing attendance at A&E departments resulting in more visits to GPs.

•

Control: Part of the outcomes may not in control of provider- providers may have to take some risk for matters outside their direct control. The more they do this, the riskier and, logically, the more expensive the service.

•

Expense: A better outcome might not be a cheaper outcome, for example, more people might want to use a service.

When is PbR appropriate?

Using some form of financial incentive or deduction will be appropriate in most contracts. But where the amount at risk eats into the provider’s operating costs, special care is necessary. PbR arrangements in which more than the provider’s margin is at risk are often appropriate where: •

Outcomes from the service are clearly articulated and understood and delivery is, or is largely, within the provider’s control.

•

Outcomes can be linked directly to the provider’s interventions.

•

Outcomes can be expressed so as to incentivise only positive behaviour.

•

Accurate data is available to establish the “as-is” position and will also be available to determine how far the provider has improved on the “as-is” at the end of the measurement period.

•

The providers in the market can finance the risk themselves, or secure cheap finance to do so.

•

The value of the service is sufficient to justify a complex structure or financing arrangements, if they are required.

In spite of the challenges arising from PbR arrangements, they have the potential to drive innovation and make savings. In some sectors, an incremental approach may be useful in order to gather baseline data.

As the relevant benchmarking data becomes available and more reliable, and lessons emerge from pilot projects, commissioners will gain confidence to tailor arrangements to drive innovation and incentivise performance appropriately within the constraints of their particular service n

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Focus on...

Warrington Borough Council Could you both tell us your career history, and the roles you are in now?

This month Local Government Lawyer speaks with Ian Mason (Head of Legal) and Anne Wright (Support Team Manager) of Warrington Borough Council.

Ian and Anne discuss the challenges (and successes) of recent restructuring; identifying opportunities for better resilience and legal support: the implications of implementing a new case management system; and their recent experience of conducting a Lean review at Warrington.

Ian Mason (IM): I had a previous career as a retail manager before qualifying as a solicitor at Chester City Council, where I stayed for 18 years, working my way up to Legal Services Manager. Two big step changes that I helped to introduce at Chester were getting Lexcel standard in the late 90s and then introducing a case management system.

Since I came to Warrington, we’ve introduced case management systems and fully implemented Lexcel.

Anne Wright (AW): My previous background was in general management. I worked for McDonalds and became a manager there, then worked for the Littlewoods Group for eight years altogether, in both management and marketing. I came to Warrington Borough Council 13 years ago, firstly as a Senior Admin Assistant. I now run the Support Team. My role really is to act as a jack of all trades: I cover HR, budgeting, managing resources, supporting the teams and compliance and practising certificates.

People even come and tell me when the toilets aren’t working!

Could you tell us about how you have changed the dynamic between fee earners and support staff at Warrington?

IM: Eroding the “them and us” culture between the admin and qualified staff is something that we’ve worked on over time. In fact, the word “admin” is banned! Now we run a very settled team. A colleague left in the summer and we worked out that was the first person who had left voluntarily to go to another job in four or five years.

AW: I think the biggest thing we have changed in the Legal Support Team is the way we support the legal professionals, because most of the team now do fee earning work as well—almost like legal assistants, to some degree.

In what ways has the organisation changed to cope with restructuring?

IM: It’s about getting the lawyers to be more interchangeable in terms of their skills. Clearly, I can’t ask a property lawyer to go to court to do a

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prosecution, but they are part of a team and we need to think about flexibility as much as possible.

The theme is doing the work at the right level. I think that is going to be something that is going to be required by all local authorities in future—more of the work being done by lawyers in a self-sufficient way, with less admin support. This self-sufficiency is reflected in the way we have introduced digital dictation and voice recognition, for example. This has reduced the need for typing and at the same time increased the support available at what you might call the paralegal level. This makes the support team able to take on transactional legal work that might otherwise have been done by a qualified solicitor but didn’t necessarily need to be done at that level. So in the case of section 106 agreements, the drafting of the agreement is done by legally qualified staff but actually the completion process of it could easily be done by somebody at paralegal level.

AW: There are a number of examples including things like traffic orders and site licences. My team support the child care team quite significantly with court bundles: not just in copying and distribution but also putting them together and getting the information from the other parties at the outset.

There are three legal support officers who carry out legal tasks as well as providing legal and administrative support, which means that solicitors can concentrate on doing the right level of work.

It also helps that newer solicitors come in with an understanding of technology and typing skills. That helps reduce the need for typists in a lot of cases.

Do members of the legal support team specialise in terms of the teams they work with?

AW: Yes—that is how it was originally set up. With the spike in child care cases over the last couple of years, our initial support response was to allocate one person to doing two days of committed support per week, meeting with the team manager, attending team meetings and so on. We are looking to broaden this type of cover across the team.

Obviously a newcomer to the work might not be able to do a job quite as quickly or as knowledgeably

as the person who has been doing it for four years, but that experience base is broadening thanks to the new team structure we have.

How large is the Legal Support team in proportion to the fee earners? What is the ratio of support?

IM: We have one support team member to four— our benchmarking indicates that this is pretty average across the country. The only issue is whether this is measuring like with like.

AW: There are still a lot of organisations that do have pure typists, and we don’t have that luxury anymore!

How will your new case management system underpin your work?

IM: We are moving to a case management product that is becoming the commonly used system across the North West. Burnley, Pendle, Cheshire West, Wirral, Trafford and quite a lot of Merseyside authorities use it. It means potential for better joint working: if three Authorities can employ one specialist lawyer to deal with an area of work, and they are all on the same case management system, it becomes much easier.

AW: We don’t have the same issues as private practice where there is that competitive element. We do Traffic Orders, and we know everybody else has to as well, so there’s a real opportunity for sharing knowledge and potentially going on to actually working together.

How does that feed into your strategic development for the future?

AW: Significantly—demonstrating that we can make these systems work is partly what got us the funding. The case management system has given us real, detailed data that we have used to our advantage. For example, during the restructuring, we were able to say that we did need a full time planning lawyer because we had spent X amount of time on planning matters over the last year. If we need to make a business case for a new lawyer, or we are trying to defend the fact that we need to keep a lawyer, we have the data to do that. There

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are even more options and opportunities to work smarter with this system. It will last longer, and it’s more user-friendly. It integrates with Office and everything else, so if anything it will make us work even leaner. Alongside this we are introducing court bundling software, which means that when bundle items change prior to going to Court, we can easily rearrange and repaginate, meaning that the costs of copying should decrease as well.

a lean review in the manufacturing sense (which is where it originates), but it was applying those sorts of techniques to our situation which is very much service-driven as opposed to output driven. We chose a number of areas to look at and break down our processes in order to cut out waste.

You slowly but surely identify all sorts of wasteful activities that don’t add any value.

nothing stopping us from becoming a paper light, if not almost a paper less office, apart from the Court system.

What are your objectives for the future?

What were the key outcomes from the review?

AW: In assessing where resources would be best allocated to meet needs, we identified approximately 1,000 hours of work which was being done at an inappropriate level.

IM: It has happened in the Royal Courts of Justice down in London. But it partly depends on the personal preferences of the judges.

IM: We do a client survey every two years, and our customer satisfaction is up to 80%. We provide a low-cost, high-value service, but we want to achieve greater cost efficiency. Currently, of approximately a third of our total cost of legal spend to the Authority, roughly 25% goes to external lawyers. If we could reduce the amount that the external lawyers take by investing in-house, we could redress that balance. That means investing more in legal resources and sending less work out of house. For example, even if we can’t currently justify a full time employment lawyer, could we employ a part time employment lawyer in co-operation with another authority? Maybe that is the way forward—pulling resources together in combination with other authorities.

Tell us about the Lean review you undertook, and what that entailed.

IM: It’s important to remember that the Lean review really built on a lot of ongoing work in process improvements that we had been doing previously. The review itself was a corporate initiative from within the Authority. We put ourselves forward to give it a go and I like to think that we have made it work; we were probably the first example of the Authority making it work successfully. I have to say I was initially sceptical about what we would get out of this exercise, so I didn’t come to this as a convert.

How did you kick off the review?

IM: Identifying the management objectives is key. We started out with four main themes that we wanted to address: dealing with external invoices, archiving deeds and documents, doing the right work at the right level and file management..

What did the review involve?

AW: We worked closely with a business analyst who looked at our needs and what we wanted to get out of it. It wasn’t

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IM: This was addressed partly through technology. By introducing digital dictation, we have reduced our demand for strict, word processing typing, and we refocused that resource in other areas.

Lawyers do more of their own personal admin, which frees up time that can be spent on better transactional work at the right level.

AW: For example typists used to just type.

Now they do the post, copying, running to Court with documents. Now the other half of the support team are actually doing legal work to support them, so it is just carefully managing the resource and getting the technology to support that.

IM: We also identified a structure for fees—the archiving processes and paying invoices, which was previously wasting a huge amount of time.

You mention that technology has played a key role in the Lean Review. How has technology revolutionised your current workflows?

AW: Now, child care lawyers have got access to speech recognition and digital dictation via their Blackberrys, which saves time. If Court adjourns for an hour they can use that time to dictate their notes and e-mail back to the office, so it is enabling them on a personal level, giving them what they need to support them. Providing laptops means that people can work flexibly and effectively from home—and we are hoping to provide the whole team with laptops in the next couple of months.

IM: Certain things are still holding us back; like the failure of the Law Courts to embrace things such as digital bundles (we still have to provide a bundle in hard copy and communicate via fax). Storage is also a big problem for us. With the new case management system there is almost

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

AW: I think that will eventually change—I know from colleagues in other Authorities that it is starting to happen, and there are a number that are trialling electronic communication, using an iPad instead of four Lever Arch files.

What were the reactions from your teams following the review?

IM: There was a degree of scepticism amongst people but very quickly I was impressed by the contribution that they made. It was quite moving to observe the team working and selfless contributions being made.

AW: It was really well received in the end after initial scepticism—that was almost eradicated and everybody really embraced it. It was quite a positive experience overall.

What do you think were the critical factors that contributed to the success of the exercise?

IM: A lot of the success is down to the facilitator, who identified who was involved in the process. In terms of getting people involved at the right level, everybody is involved in that to an extent ¬- we made sure to get a representative from each team within the service.

AW: And what we strived to do was make sure that every person in the department was assigned to work on one of the themes. This increased buy-in and gave people the chance to voice objections. With everybody involved in the process there was shared ownership: “This is your review, we are doing this to make it better for all us”. People were assigned to themes that were relevant to them with respect to the work that they do, and then we made sure to have a representative from each team on each review n This article was first published in the North West Legal Consortium Monthly Newsletter.

Public Law

Prospects for codifying the relationship between central and local government 2013 REUTERS/Suzanne Plunkett

Chris Himsworth

1. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and LocalGovernment, third report of Session 2012–13 (London: TSO, 2013), HC 656. In footnotes below, references to the “Report” are to vol.I. 2. The Committee refer, in particular, to the House of Lords Committee on Relations between Central and local Government, Rebuilding Trust (1995–96) HL Paper 97 (London: TSO, 1996); and House of Commons Communities and Local Government Committee, The Balance of Power: Central and Local Government, sixth report of the session 2008–09 (London: TSO, 2009), HC 33.

3. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.1.

4. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I. The Committee’s inquiry and Report are confined to England because of the devolution of legislative competence for local government to the devolved authorities in Scotland, Wales and Northern Ireland.

5. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.46.

In the long-standing debate in the United Kingdom about the relationship between central and local government the starting point has been an assumption that local government is a good thing. It is an assumption sustained by a history of strong multi-functional local authorities and, despite the rocky experience of the latter half of the 20th century, that their continuing contribution is something both necessary for local service delivery but also desirable as the local embodiment of democracy. The second dominant feature of the debate and the principal cause for concern has been the threat to local government posed by central government’s powers of control. Using the authority of statutory intervention available to them, central governments have imposed local authority reorganisations; they have bestowed and withdrawn powers; they have intervened in local authorities’ systems of government; they have imposed restrictions on the exercise of powers; and, above all, they have manipulated the financing of local authorities. There has been, thirdly, a widely shared assumption that such powers of control produce an unsatisfactory relationship between the two tiers of government and that something should be done to remedy the situation.

In the opening paragraphs of Prospects for Codifying the Relationship between Central and Local Government,1 the Political and Constitutional Reform Committee of the House of Commons list some of the more recent attempts to rebalance the relationship2 but observe that published reports of such attempts “have, quite literally, sat on the shelf”.3 The Committee claims, however, that: “new factors are at play—the Government’s commitment to localism, the desires of local government itself, and the debate on the future of Scotland—and we are optimistic about this issue being seriously debated and action resulting.”4 Their approach has been to offer a contribution to that debate by producing, first, a draft code containing the essential elements for a new relationship and then, secondly, a proposal for ensuring that the code has statutory status and furthermore that its status is enhanced by a degree of “entrenchment”. Thirdly, the Committee suggest some “next steps” towards the achievement of such a code.

These elements are, of course, all related. They are all problematic—the problems magnified in this case by the Committee’s timid style of presentation. Their proposed code is merely an “illustrative draft code”. It is offered as a “basis for further discussion”. The Committee say that central government “should use our report and the draft code to initiate a wider debate about the future of localgovernment. We do not suggest that there is unanimous agreement on the precise wording of thecode, but we have found much support for the broad principles that underpin the code. We presentthe code for further debate, not as the last word.”5

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UPDATElaw public FROM LAWTEL AND WESTLAW UK Such caution may well be generally appropriate in this fraught area and it was probably a preconditionfor unanimity in the Committee but, in circumstances where very precise formulation of the content of a code as well as the terms of its incorporation into the statute book will eventually be needed, the vagueness and uncertainty are unhelpful.

The content of the proposed code The notion of a “code” in this context is potentially ambiguous. This is not a codification of all existing statutory provisions bearing upon the central-local relationship but instead a code (appended to the Committee’s Report) of 10 Articles and a preamble “which represent the broad principles that could govern the relationship between central and local government”.6 It is, on the other hand, rather perplexingly, “intended to replace the estimated 1293 duties imposed on local government today”7 —although without explanation of how that “replacement” is to be achieved.

Article 1 of the “illustrative draft code” is primarily concerned with the code’s status, discussed below. Under the heading of “Local Autonomy and Local Self-Government”, Article 2 declares that councils’ accountability is to local citizens (para.1); that they shall operate within the rule of law and human rights legislation (para.2); and that they are autonomous, democratically elected bodies (para.3). Paragraph 4 asserts “an irrevocable general power of competence with a full legal personality” and declares a power to “pass local measures”, whilst acting in accordance with “the national legal framework” —whatever that might be. Article 3 on the “Scope of Local Government” reasserts a general competence for local authorities and a right to consultation by central government on any proposed actions which will affect any council and its communities. Article 4 on “Inter-Governmental Activities” makes the curious assertion that central and local government (whatever is entailed by those entities) “acting jointly shall be allowed to create inspection regimes to set and maintain service standards”. Article 5 on “Territorial Autonomy” provides that the geographical boundary of a council can only be altered by a proposal from the council itself or from local citizens and not by any action of central government. This is bold and would presumably, on its face, deny central government and Parliament

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the power to initiate and undertake any reorganisation at all?

Article 6 claims a right for local citizens to choose internal political decision-making systems for councils but also makes the additional, and surely extravagant, claim for local citizens to adopt any electoral system for use in council elections! And Article 7 addresses what it calls “Local Government Financial Integrity” and starts with two curious assertions. The first is that “councils shall be financially independent of central government” which sounds praiseworthy but it is never explained whether this is really intended to imply an end to all central subsidy.

The second proposition in Article 7 is that “[e]qualisation will continue as now.

Equalisation will be conducted through a process independent of central government …” This is odd in two respects.

There is no problem with a general commitment to financial equalisation between authorities but whether any form of equalisation can be in tune with the idea of financial independence from central government must be debatable.

It is also curious that, in a document intended to endure as a *P.L.705 statement of principles, current arrangements should simply “continue as now”. Article 7 containsother mysteries. It is stated that councils “may raise additional sources of income in their localities in any way they wish … if they gain the consent of their electorates”. Without quibbling about the notion of “raising sources”, it still has to be asked “additional” to what? Perhaps simply additional to funds raised by virtue of the later declaration that local government “shall have a guaranteed share of the annual yield of income tax.” This is one of the (tentative) suggestions made in a rather garbled Ch.5 of the Report. The principal suggestions are for simplicity and transparency but then (very much on the hoof) that: “central and local government seriously consider the concept of local authorities receiving a share of existing income tax, to see if a viable figure can, after careful consideration, be arrived at.”8 Articles 8, 9 and 10 provide for, respectively, “Councils’ Right and Duty to Co-operate and Associate”, “Decision making” (including provision for referendums), and “Legal Protection of Local Government”.

We return to Article 1 below. But there should first be a mention of the preamble

6. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.47. There is also an Annex to the Report “What does the code mean for me?” which seeks to explain to the “ordinary elector” how the code would bring a “new buzz” to local government.

7. A reference, in para.47 of the Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, volume I, to a written answer at Hansard, HC col.58 (June 30, 2011).

8. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.92.

to the Code. It is described as “optional” and comprises four sentences. In the first it is stated that: “We the citizens and the Government of the United Kingdom recognise all elected councils in England as free and independent bodies …” In the others, “Parliament” variously “asserts” or “states” or “makes plain” a number of propositions about the status and rights of elected councils. The preamble, in its unsubtle combination of popular aspiration and parliamentary assertion, is a constitutional curiosity.

The code as an entrenched statute In an early passage of their report, the Committee discuss what they call the failure of “non-statutory options” —by which they mean, in particular, the Central-Local Concordat of 2007 which, though well-intentioned, has fallen into disuse because it lacks statutory status and is simply an agreement between the Local Government Association and the Department for Communities and Local Government, rather than binding Whitehall as a whole. The Committee insists, therefore, that its proposed code be “enforced by statute and that the statute be entrenched”.9

9. P olitical and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, paras 111, 112, 118.

10. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.118.

11. The Committee acknowledge the need for a draft Bill to follow. See Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.128.

12. P olitical and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.112.

13. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I. 14. There is some further discussion in the written evidence to the Committee from the Constitution Society. See Ev w27 in vol.

III of Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government.

15. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.114.

It is here that the Committee’s proposals come unstuck, perhaps explaining the diffident encouragement offered to the Government merely “to examine the possibilities of a stronger constitutional status for local government, through an entrenched statutory code, or a similar proposal.”10 The problems are two-fold.

The first is that the Committee never really explain how their proposed illustrative draft code is to acquire its statutory status.

It is not, as published (with or without its optional preamble), in the form of a draft Bill11 and, in its mix of declaration of principle and aspiration, it lacks the content required of a document intended to amend the existing law.

But neither is there any explanation of how the draft code might otherwise achieve statutory status. Might this be a status resembling that of the Highway Code, the Immigration Rules, or the European Convention on Human Rights (ECHR)?

At points, it seems, the code would have to be capable of overriding existing laws.

The formulation of its status and the mode of its relationship to such existing laws is of the highest importance — but also of potentially great difficulty. A multitude of questions are begged.

Entrenchment is, of course, the other snag.

The Committee offer two responses to the tricky issues raised by the lack of a written constitution, parliamentary sovereignty, and executive domination of the legislative process. The first is their “proposal for discussion” that: “the independence of local government should be protected further by amending section 2(1) of the Parliament Act 1911 to ensure that the consent of the Lords was always required for any Bills that altered the ‘powers, functions or structure of local government’. The effect of our proposed amendment would be to ensure that the Second Chamber had to authorise any change to the fundamental freedom of local government.”12 The Committee say that they believe that: “the very existence of this power would be sufficient for it never to have to be used. If the consent of the Lords were always required for any Bills that altered the ‘powers, functions or structure of local government’, future governments would find it difficult to pass legislation that would constrain local government autonomy. In effect, this would allow the Second Chamber to have a veto on local government matters it disagreed with.”13 They acknowledge that the amendment of the Parliament Act in this way would be unprecedented and could encourage others to try to amend the Parliament Act to give constitutional protection to other matters.

These fears must surely be well-founded.14 And there are other potential difficulties.

Is it credible or, in any respect appropriate, for every Bill affecting the structure of local government and for every education Bill or highways Bill or planning Bill amending the powers of local authorities to be subject to the possibility of a veto by the House of Lords? And, all other technical considerations apart, is it constitutionally intelligent in 2013 to place the duty of securing local autonomy and local democracy on a legislative chamber which is itself unelected?

As a variant on the House of Lords veto, the Committee offer the possibility of codification “within a Scotland-style Act”15 which is explained to be a reference to the Scotland Acts of 1998 and 2012, the legislative powers conferred on the Scottish Parliament and the protection from intrusion upon devolved matters from the UK Parliament by the Sewel

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Convention. But this is clumsy stuff. A recurring theme in the Committee’s report is a claimed equivalence between the protections they seek for English local government and devolved government elsewhere in the United Kingdom. They acknowledge the lack of a future for English regional government since the referendum in the North East of 200416 and, as a result, local government becomes the route to solving the English democratic deficit.

“The devolution of power to Scotland, Wales, and Northern Ireland has been successful and is an evolving process.

England is the odd one out. There is no apparent reason why local government in England is not capable of using similar powers.”17 But there are, to the contrary, some quite apparent reasons. There are lots of reasons why conferring legislative powers on devolved parliaments and assemblies (or even the executive powers initially conferred on the National Assembly for Wales by the Government of Wales Act 1998) is different from trying to secure the status of hundreds of English local authorities.

The other element in what the Committee calls a “double-lock” for the protection of local government is a provision (in Article 1 of the illustrative draft) requiring authorisation by an elected joint committee of both Houses of Parliament before the fundamental freedoms and duties of councils can be “compromised or changed”. In the body of the report, however, the Committee backs off from this threat of a joint committee veto to speak instead of the joint committee’s role being to “advise on whether any proposed legislation would infringe on the autonomy of local autonomy of local government … to flag up early resurgent centralising tendencies.”18 The next steps19 As mentioned, the Committee’s ambition, spelled out in Ch.7 of their Report, is to: “continue the dialogue with central government and to move, consensually, ever closer to a genuinely equal partnership between central and local government. We believe such a partnership would strengthen both the local and central arms of government.“20

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The Committee envisages a cultural shift leading to “a massive renaissance in local government and an injection of energy that will reinvigorate local politics.”21 They are: “not seeking to put forward a watertight answer regarding the decentralisation of power in England, but rather we are opening up for discussion some concepts which are used extensively elsewhere and could be successfully applied in England.”22 They propose discussions with the Local Government Association; with “central government at political and official level over the next year or so;” and with party leaders in the UK Parliament.23 They suggest that it: “might be helpful to many in local and national government to see the approximate shape of any piece of legislation that could give life to a statutory code. For this reason, we will seek to turn the illustrative statutory code into a draft Bill, as part of our ongoing work.”24 There is to be a conference at some point in 2013 to which “the Government, Parliament, and local government” will be invited.25 The Committee close their Report modestly: “We do not pretend to have all the answers but we hope that we have posed the questions in a constructive and helpful way that will ultimately result in progress towards a settled constitutional position for English local government which will last for many decades into the future.”26 A comment The Committee have indeed posed some questions and, rather more cautiously, some answers. This is, however, the easy bit. The Committee rejoice in the volume of responses (a record for the Committee) they received during the consultation process27 but, of course, local authorities will be likely to sign up, both individually and through their Association, for more powers. If the proposal takes the form of a code claiming to entrench those powers for ever, so much the better. There are, however, two big remaining gaps in the project. The first is the view of the other party to the code’s relationship—central government. The Committee’s Report records no evidence at all from the Department of Communities and Local Government but it was unlikely that the Department would take kindly

16. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.30.

17. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.121.

18. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, paras 116–117.

19. It may be noted that the Committee returned to the theme of “Devolution to Local Government” in their later report: Political and Constitutional Reform Committee, Do We Need a Constitutional Convention for the UK?, fourth report of session 2012–13, HC 371 (London: The Stationery Office, 2013), paras 63–67.

20. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.119.

21. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and LocalGovernment, vol.I, para.123.

22. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.125.

23. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, paras 126–127.

24. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.128.

25. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.130.

26. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.131.

27. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.7.

public law to either the prospect of a Code or the Committee’s other radical proposals (e.g. for joint inspection regimes, local authority choice of electoral systems, and a wholesale revision of local funding), all of which carrying sharp consequences for the Government’s interests.

In May 2013, the Government responded to the Report.28 On the core issue of an entrenched code, the Government adopted a consistently sceptical approach. It rejected a codified relationship as focusing “energy on theoretical debate rather than shared endeavour”.29 A code might support an increasingly litigious culture.30

28. HM Government, Government Response to the House of Commons Political and Constitutional Reform Committee Report (London, The Stationery Office 2013) Cm.8623. Earlier the Deputy Prime Minister had expressed some doubts about the Committee’s “constitutional blueprint”: HC Liaison Committee, Uncorrected Transcript of Oral Evidence (February 5, 2013) at Q43.

Parliament.uk at http://www.publications. parliament.uk/pa/cm201213/cmselect/ cmliaisn/uc958-i/uc95801.htm [Accessed July 15, 2013].

29. H M Government, Government Response to the House of Commons Political and Constitutional Reform Committee Report, p.13.

30. HM Government, Government Response to the House of Commons Political and Constitutional Reform Committee Report, p.28.

31. HM Government, Government Response to the House of Commons Political and Constitutional Reform Committee Report, p.29.

32. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.44.

33. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.121.

34. N ot all happy. See Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us (December 2012).

35. H ouse of Commons Communities and Local Government Committee The Balance of Power recommendation 26, para.133.

36. S ecretary of State for Communities and Local Government, Final Government response to the Communities and Local Government Select Committee report into the balance of power: central and local government, Cm.7801 (London: TSO, 2010), p.7.

37. A personal interest should be acknowledged here. I offered to the Committee a couple of brief comments on the more technical aspects of the possible “incorporation” of the Charter. See Ev w 23 and Ev w 177 published in vols III and IV respectively of Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government.

38. Political and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, paras 22–26.

39. P olitical and Constitutional Reform Committee, Prospects for Codifying the Relationship between Central and Local Government, vol.I, para.26.

“Regardless of the merits of a statutory code, the Government does not believe that the case has been made for any amendment to the Parliament Act or for treating legislation affecting local government differently from other statute.”31 This touches on the Report’s biggest failing. As already indicated, it is at the point where the Report seeks to achieve constitutional status for their proposals that the project really runs into difficulties.

It is too easy to invite comparison with constitutional arrangements in France, Spain and Germany32 and to imply that, because “local government in much of Europe has enjoyed constitutional protection for decades” and because the “devolution of power to Scotland, Wales and Northern Ireland has been successful”33 this is readily achievable for English local government. It is not.

The difficulties are much greater that the Committee appear to suppose. The content of a code may raise enough problems but these are nothing in comparison with the problems of giving it statutory and constitutional status. In this respect, the project to confer enforceable and entrenched rights on local authorities strongly resembles the project, eventually producing the Human Rights Act 1998, to confer such rights on individuals. The parallel is an important one. There have, of course, been subsequent developments34 but one advantage of the process of “incorporation” of the ECHR was that it could be taken from the shelf as a treaty whose text was settled and accepted as binding on the United Kingdom for nearly half a century. There is an equivalence here with the European Charter of Local Self-Government which is a Council of Europe treaty of 1985, ratified by the United Kingdom in 1998. The advantages of “incorporating” that treaty have

been recognised in recent years, most prominently by the House of Commons Communities and Local Government Committee in 2009. That Committee recommended that the Government should introduce “constitutional” legislation to place the Charter on a statutory basis.35 The Government of the day undertook to give “close consideration” to the issue.36 The new Report acknowledges the claims of the Charter for consideration in the debate37 but rejects its candidacy in favour of the draft code.38 The Committee say that the Charter’s basic principles are sound and reflected in the code. They believe, however, that the “code better reflects the specifics of England’s situation, and the Government’s ongoing localism agenda.”39 There is, of course, a debate to be had about the Charter and the status it could be given in domestic law—the first stage of which is the question whether to aim for justiciable rights for local authorities at all.

But, once that stage is passed (as it has been by the Political and Constitutional Reform Committee) then the Charter’s claims need to be taken seriously. It has a settled content by which the UK Government is bound (as opposed to the unsettled and probably controversial content of the draft code) and the model of incorporation of the Human Rights Act is at least available as a serious starting point for discussion. In the meantime, what the Committee’s Report has demonstrated is that, in the doing of constitutional reform, the first and easy bit is to engage the support of those in whose interests the reform may be done. Very much more difficult is the mode of delivery n

Chris Himsworth Professor Emeritus of Administrative Law University of Edinburgh

Article first published in October issue of Public Law

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update from lawtel and westlaw uk case summary 1 R (on the application of CAROL BUCK) v DONCASTER METROPOLITAN BOROUGH COUNCIL (2013) [2013] EWCA Civ 1190 In R(Buck), the appellant (B) appealed against a decision that the respondent local authority’s executive had acted lawfully in refusing to implement a budget amendment determined by the full council (C). The executive, comprising the directly elected mayor (M) and his cabinet, had decided to make changes to library services, including closing two libraries. C amended M’s proposed budget, proposing a contingency budget to support the libraries. M refused to implement the proposals. The High Court rejected the challenge of B, a resident library user, to M’s decision Their Lordships held that in view of the objective of the relevant provisions of the Local Government Act 2000, it would be extraordinary if C could direct M how to spend money authorised by the budget. If C’s budget-setting powers extended to prescribing expenditure exactly, it could determine exactly what the executive would do. That micro-management was plainly not intended. The Local Government Finance Act 1992 s.31A(2)(a) did not give C power to interfere with M’s executive function, except where M proposed to exercise the function contrary to, or not wholly in accordance with, the authority’s budget, or contrary to a plan or strategy adopted or approved by the authority.

When budget setting, C was estimating, not determining, what would happen. Budget setting was not the same as deciding expenditure. The 1992 Act required an authority, through the council, to calculate the aggregate of various estimated amounts, in order to find the shortfall to which its council tax base had to be applied. Determining a matter in a manner “contrary to or not wholly in accordance with the authority’s budget” meant determining a matter resulting in expenditure exceeding that for which C had given approval. C could allocate more or less funds than M requested in his proposed budget, and was the final arbiter of the budget, but was not allowed to micro-manage the authority’s functions and interfere with M’s executive functions. B had to show that there was a “plan or strategy” in existence in relation to the relevant function that had been “adopted or approved” by C, and that M’s decision to proceed with the proposals was contrary to that plan or strategy. There was no relevant plan or strategy, read in the context of the Local Authorities (Functions and Responsibilities) (England) Regulations 2000. It could not embrace every decision that might be taken on an individual issue: that would undermine the distinction between executive and non-executive functions.

C could set the policy framework, but detailed implementation was a matter for the executive. M’s budget proposals for library services did not comprise a “plan or strategy” for that budget. At most the proposals were an expression of a small aspect of the policy forming the basis of the budget. In any event, the financial strategy referred to in M’s budget report was not intended to be a plan or strategy separate from the budget. Even if the report had contained a strategy separate from the budget, C had not adopted or approved that strategy and had no such power within the meaning of Sch.4 para.3 of the Regulations.

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REUTERS/Stephen Hird

case summary 2 RE B-S (CHILDREN) (2013) [2013] EWCA Civ 1146 In Re B-S, the appellant mother (M) appealed against refusal of her application under the Adoption and Children Act 2002 s.47(5) for leave to oppose the making of adoption orders in relation to her two children (X). X had been the subject of care and placement proceedings. They were placed with prospective adopters and an application for adoption followed.

M applied under s.47(5) on the basis that there had been a change in circumstances since the care and placement orders were made. The judge found that there had been a change of circumstances, but referred to the welfare checklist, noting that X were in particular need of stability and care, and concluded that it was entirely improbable that M would succeed in opposing adoption if granted leave. The issues were (i) the appropriate approach to be followed by an applicant for an adoption order; (ii) the correct analysis of the test under s.47(5); (iii) whether the judge had erred.

Their Lordships held that there were real concerns about the recurrent inadequacy of the reasoning advanced in support of adoption, both in materials advanced by local authorities and guardians and in many judgments. When the court was asked to approve a care plan for adoption or to make a non-consensual placement or adoption order, first, there had to be proper evidence from the local authority and the guardian addressing all the realistically possible options and containing an analysis of the arguments for and against each option. Those were necessary if the exacting test set out in B (A Child) (Care Proceedings: Appeal), Re [2013] UKSC 33, [2013] 1 W.L.R. 1911 and the requirements of the European Convention on Human Rights 1950 art.6 and art.8 were to be met. Second,

an adequately reasoned judgment was essential. The judge had to grapple with the factors in the particular case and give proper attention to the specifics. The task was to evaluate all options, undertaking a global evaluation of the child’s welfare, considering all the negatives and positives of each option. Under s.47(5), the court had to ask whether there been a change in circumstances, and if so whether leave to oppose should be given.

At the second stage, the court had to consider the parent’s ultimate prospects of success, and the child’s welfare was paramount. The court had misgivings about the fact that previous cases had said that permission to oppose would only be granted in “exceptionally rare circumstances”, and had described the test to be applied on a s.47(5) application as “stringent”. Both phrases were apt to mislead, with potentially serious adverse consequences. In the light of B (A Child), they conveyed the wrong message and their use in relation to s.47(5) had to cease. The judge’s refusal of leave was correct. She had accepted that there had been significant change, and recognised that adoption was not a universal solution when a parent was unable to give a child good enough parenting and that adoption was not to be undertaken without compelling reason. She had made no reference to the “exceptionally rare circumstances” approach, but had gone through the welfare checklist, recognising correctly that X’s interests were paramount. She had also drawn attention to several key facts, including that X had had terrible experiences, that they were consequently at risk of reverting to their previous emotionally deregulated behaviour, and that accordingly they needed stability and care. It was therefore understandable that she had concluded that it was entirely improbable that M would succeed in opposing adoption, and that M’s application should be refused in X’s best interests.

legislation update SI 2013/2438 (W.235) LOCAL GOVERNMENT, WALES The Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) (Amendment) Regulations 2013 In Force: October 22, 2013 The Local Government Act 2000 Part II provides for the discharge of a local authority’s functions by an executive of an authority (which must take one of the forms specified in s.11 of that Act) unless those functions are not to be the responsibility of the authority’s executive. The Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007 (the Principal Regulations) specify those functions are not to be the responsibility of authority’s executive or are to be the responsibility of such of an executive only to a limited extent or only in specified circumstances.

These regulations make amendments to the Principal Regulations.

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Introducing Practical Law Family This September Thomson Reuters launched a new know-how service on Practical Law for family lawyers. Emma Wilkins, Head of Practical Law Family, and Chris Knuckey, Head of Practical Law Public Sector, reveal how the service can benefit local government lawyers.

What is Practical Law Family?

Emma Wilkins: Practical Law Family is an online resource for family law practitioners, giving them easy, instant access to the legal tools and information they need every day. We provide practical guidance and resources that help lawyers work more efficiently.

My team previously worked as family law solicitors and the service is something that we would have loved to use when we were in practice, giving us all the information we needed in one place and the reassurance that it is up-to-date.

How long has it been in the making?

EW: I joined Practical Law in Autumn 2012. It took us a year to create the service, from planning the content and securing contributors through to launch in September this year.

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What does Practical Law Family provide?

EW: My team creates resources such as practice notes, standard documents and current awareness e-mail updates. We maintain resources so they’re always up to date with current law and practice, and you can link through to related case law and legislation on Westlaw UK from our know-how resources. Experts from leading law firms and sets of chambers also contribute and advise on the direction of our service. Two members of our consultation board – Alicia Collinson, Harcourt Chambers, and Jerry Bull, Managing Partner at Atkins Hope – specialise in public sector work and help us keep up to speed with this area of law.

REUTERS/Steve Crisp

"Practical Law Family is an idea whose time has well and truly come.

At this time of ever squeezed resources the more help the practitioner can get to access the right know-how and standard documents quickly, the better. The in-house team and contributors have masses of hands on experience to ensure the best service. Just what we all need."

The Honourable Mr Justice Coleridge, High Court Judge, Family Division

How will the service benefit local government lawyers?

Chris Knuckey: We’re aware that shrinking local authority budgets do not often take into account increasing workloads, especially in an area such as child protection. Practical Law is a productivity tool which enables lawyers to meet these challenges without impacting on the quality of their work. We can help lawyers work more efficiently, save time and reduce costs spent on external counsel.

EW: To name a few benefits, you can quickly familiarise yourself with an unfamiliar area of law with one of our practice guides, find out about developments in significant public children cases from our weekly e-mail update or ask our team to help you find a resource. The website can also be accessed from mobile or tablet devices, which should be beneficial when working on the go from court.

How does Family fit in with Practical Law’s Public Sector service?

CK: The new content sits perfectly with our existing resources and represents a major step forward in our plans to provide comprehensive coverage of all areas of law a local authority encounters. While my team has always monitored and reported on key developments relevant to children’s services departments, we were aware that there was more we could do to further meet the needs of our local authority subscribers in this area. As Family resources are available to all Public Sector subscribers, we have now been able to do this.

EW: Our objective has always been to meet the requirements of both our Family and Public Sector subscribers. We think our bank of public law children materials covering topics such as child protection, care and supervision orders, special guardianship and adoption enhances our joint offering and will prove invaluable to public sector lawyers.

KEY RESOURCES Practice notes Procedure for care and supervision orders uk.practicallaw.com/9-537-6705 Special guardianship orders uk.practicallaw.com/3-537-8627 Procedural guide to Emergency Protection Orders uk.practicallaw.com/6-537-8348 Standard documents Care orders: Sample letter before proceedings uk.practicallaw.com/3-526-7747 Letter of instruction to expert in public law children proceedings uk.practicallaw.com/2-539-2445

How has Practical Law Family been received by the local government market so far?

CK: Initial feedback from our local government subscribers has been excellent, with comments made on the quality and depth of coverage.

EW: We’ve been delighted with the overwhelmingly positive feedback we’ve received from both private and public sector lawyers. It’s been great to get out and about to demonstrate the service.

Plans for future resources?

EW: We will be developing our resources on adoption from a public sector perspective. In the near future, we’re planning resources on instructing experts in children proceedings and representation of children in court, as well as adding to our popular suite of guides for clients.

We’re received feedback that that public law sector lawyers would welcome industry standard precedent documents and we hope to be at the forefront of shaping this.

CK: As with all Practical Law services, our publishing priorities are determined by our subscribers and we’re keen for feedback that will help us tailor future content.

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BOOKSHOP Highway Law 5th Edition The new 5th edition supplies a detailed and practical commentary on the law relating to the creation, upkeep, development and ownership of highways, including the powers and duties of highway authorities, the rights of users of the highway and of those who own land around the highway.

• • •

Provides you with a complete reference to the law governing highways Delivers clear, practical guidance, written in a straightforward and accessible style Addresses matters of particular interest to practitioners, such as stopping up and diversion orders, traffic orders, street works, footpaths, bridleways and bridges December 2013 £175 978 0 414 02490 8

Todds’ Relationship Agreements This new book brings together in one source comprehensive guidance on the law relating to all types of relationship agreements.

•

Details precisely how to decide if the agreement was unconscionable at the date of its inception, considering duress, undue influence, mistakes, inadequate legal advice, etc. This is an essential aspect that competing titles do not appear to address • Gives detailed drafting advice, highlighting what should be included and what should not • Suggests a frame work for calculating fair figures to put in a pre-nup and a methodology for determining these • Specifically addresses conflicts between jurisdictions – the key issue behind the landmark Radmacher case November 2013 £99 978 0 414 02303 1

De Smith’s Judicial Review 7th Edition The leading work on the principles and practice of judicial review • Deals authoritatively and comprehensively with all grounds of challenge, including illegality, procedural impropriety, substantive review, Convention rights and European Community grounds • Provides guidance on the practice and procedure of judicial review, setting out what to do at each stage of the process • Details the different remedies available, such as injunctions, prerogative orders, and pecuniary remedies, so you can advise your client effectively on the best course of action Out Now £285 978 0 414 04215 5

Preston and Newsom: Restrictive Covenants Affecting Freehold Land 10th Edition Provides comprehensive guidance on restricted covenants as they relate to freehold land. It explains the underlying legal principles, looks at the practical aspects of drafting and registering covenants, and considers what happens when a covenant is breached.

• • •

Explains how and when a restrictive covenant is enforceable in registered and unregistered land Shows how the benefit or burden of a restrictive covenant is transferred upon the sale of land Goes through the Lands Tribunal hearing procedure and its powers to award compensation and modify or discharge restrictive covenants Out Now £195 978 0 421 85810 7

Dilapidations: The Modern Law and Practice 5TH Edition Provides comprehensive coverage of the legal principles relating to both residential and commercial dilapidations, together with all the practical aspects of dilapidations claims.

• Concentrates on those areas of the law which give rise to problems in everyday situations • Discusses the legal principles with worked examples showing how they apply in practice • Explains both landlords’ and tenants’ obligations and liabilities • Provides stage-by-stage procedural guidance for resolving disputes Out Now £205

978 0 414 02499 1

Service Charges and Management 3rd Edition Provides comprehensive coverage of the law relating to service charges and management of commercial, residential and mixeduse developments with commentary on leasehold and commonhold property.

• •

Written for use by solicitors, counsel, surveyors, managers, landlords and tenants Examines the topic of service charges and management thoroughly, addressing potential issues and offering useful guidance on the available remedies • Management issues covered include the appointment of manager, acquisition orders and the acquisition and exercise of the right to manage • Covers service charges in relation to commercial, residential and mixed-use, leasehold and commonhold property December 2013 £145 978 0 414 03140 1

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NEW EDITIONS AND TITLES FROM SWEET & MAXWELL

YOUR 30-DAY SATISFACTION GUARANTEE

By email: trluk.orders@thomsonreuters.com By telephone: 0845 600 9355 Online: sweetandmaxwell.co.uk

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As long as the goods are returned within the 30-day period, in good resalable condition and according to our returns procedure, your order will be cancelled and you will owe nothing or will be refunded the price of the goods. Applicable in UK and Europe only.

Chitty on Contracts 31st Edition, 1st Supplement Since the 31st edition was published, there have been legislative and case law developments affecting many chapters. Some of the legislation and cases the supplement contains includes: • • • • •

Brussels Regulation bis (2012) - on the ‘arbitration exception’ Financial Services Act 2012 - effects on banking, credit and insurance contracts Late Payment of Commercial Debts (No.2) Regulations 2013 Yam Seng Pte. Ltd. v International Trade Corporation Ltd – implied duty of good faith Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (CA) – express term requiring good faith

November 2013 £135

978 0 414 02831 9

Pensions on Divorce 2nd Edition Explains in an accessible fashion one of the most technical and pitfall-strewn areas of family law practice.

• • •

Explains what powers the court has to intervene and redistribute pension rights Goes through the procedural mechanisms which the court will follow in carrying out intervention and redistribution Discusses the circumstances in which the court will consider it appropriate to intervene and redistribute pension rights or make some other compensatory provision

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978 1 908 01319 4

Mental Health Act Manual 16th Edition Gives guidance on the Mental Health Act, the effect of the cases arising from it, the delegated legislation made under the Act and the consequences of the Human Rights Act. • • •

Significant amendments made to the Act and its associated Regulations by the Health and Social Care Act 2012 Amendments made to the Tribunal Rules by the Tribunal Procedure (Amendment) Rules 2013 The enactment of the Mental Health (Approval Functions) Act 2012

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978 0 414 02882 1

European Lawyer Reference Series Family Law Jurisdictional Comparisons 2nd Edition Family Law is an essential guide that enables you to make quick comparisons between 46 international jurisdictions worldwide.

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Offers essential current content reflecting Family Law across over 46 major jurisdictions throughout the world Includes contributions from expert international family lawyers who are Fellows of the International Academy of Matrimonial Lawyers (IAML) Provides a reader-friendly Q&A format to allow for easy cross-jurisdictional comparisons

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Immigration Law Jurisdictional Comparisons Essential current content reflecting Immigration Law across 18 major jurisdictions throughout the world.

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978 0 414 03125 8

COMMERCIALISATION OF HEALTH CARE JURISDICTIONAL COMPARISONS This new book is designed to meet the increasing demand for knowledge about how health care products are regulated by providing a single reference for clients and advisers involved with commercialization of health care products.

• Essential current content reflecting health care products and regulation across 20 major jurisdictions throughout the world • Focuses on Medical Devices; Biological Products, and Natural Health Products • Includes contributions from expert medical lawyers November 2013 £210

978 0 414 02706 0

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LOCAL GOVERNMENT LAW

AT YOUR FINGER TIPS

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.

Local government law now available on Westlaw UK...

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

REUTERS / Paulo Whitaker

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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27

PROFILE

Adrian Carr Adrian Carr is a barrister at Tanfield Chambers and has broad experience of all aspects of landlord and tenant and traditional and modern Chancery practice, covering litigious, advisory and non-contentious work. He is the editor of the 3rd edition of Service Charges and Management and has worked with an author team within Tanfield Chambers.

The new edition will publish in December.

Could you tell us about your professional background and how you came to be a Barrister?

Having enjoyed 2 years reading books for my English Literature degree, it dawned on me that I would have to get a job at the end of it. So I spent part of my summer vacation doing work experience, including a mini-pupillage in a barristers’ chambers.

Maybe it was because I had spent the previous couple of months over the summer earning my keep doing pensions administration, maybe it was the experience of a 2 week trial in the Old Bailey, maybe it was the sunny weather, but either way I decided that I wanted to be a barrister. After graduation, I did the GDL course at City University, the BVC at the Inns of Court School of Law and then undertook pupillage. I was taken on as a tenant at 3 New Square after pupillage and moved to Tanfield Chambers in 2001.

Why did you choose to specialise in landlord and tenant law?

Landlord and tenant law is constantly evolving.

Successive governments have introduced new legislation and regulation and lawyers must constantly keep themselves up-to-date on the law. Cases often involve interesting disputes of

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fact and almost always include challenging points of law. Working for both landlords and tenants in residential and commercial disputes gives a fascinating insight into their respective tactical concerns and preoccupations.

Can you describe the most interesting case you have worked on?

I acted for the landlord in a long-running service charge dispute of a mixed-use development, which spawned an application to appoint a manager and other court proceedings. These various sets of proceedings increased my understanding of the management of a complex mixed-use development and the issues which arise for both landlords and tenants.

How have you found the role of editing the latest edition of Service Charges and Management?

Tough. Taking on the editing of the 3rd edition was a daunting task, given the success of the previous editions and the weight of expectation.

Taking into account feedback on the 2nd edition, I decided to change the structure of the book to provide four distinct sections: 1) Lease terms; 2) Statutory Regulation of Service Charges and

Other Controls; 3) Dispute Resolution, Remedies and ADR; and 4) Appointment of Manager, Acquisition Orders and the RTM. As a result, much of the 3rd edition has been entirely rewritten by the team of contributors in Tanfield Chambers.

Although it has been hard work for me and all of the contributors, it has been very satisfying to see the copy coming together.

What are the key recent developments that have affected the contents of the 3rd edition?

Important developments which are considered in the 3rd edition include: •

The decision of the Supreme Court in Daejan Investments Ltd v Benson [2013] 1 WLR 854, which has fundamentally changed the law on dispensation from consultation

•

A number of decisions on the application of LTA 1985 s.20B, including Holding & Management (Solitaire) Ltd v Sherwin [2010] UKUT 412 (LC), Brent LBC v Shulem B Association Ltd [2011] L&TR 22 and Burr v OM Property Management Ltd [2013] HLR 29

•

The decision of the Court of Appeal in Arnold v Britton [2013] EWCA Civ 902 on the interpretation of leases

•

The transfer of functions from the Lands Tribunal to the Upper Tribunal (Lands Chamber) in November 2010 together with new procedural rules and a practice direction

•

The transfer of functions from the LVT to the First-tier Tribunal (Property Chamber) in England in July 2013, together with new procedural rules and a practice direction.

How do you think it will help readers in their work?

The 3rd edition has been written for use by solicitors, counsel, surveyors, managers, landlords and tenants alike in both commercial and residential service charge disputes. It provides practical guidance on the best course of action to take and the best remedies available for clients, be they a landlord or a tenant.

Fully updated with the latest case law, statutes and regulations, the 3rd edition will allow the reader quickly to find the law they need to deal with service charge and management disputes.

What do you see as the key features of the title that will set it apart from its competitors?

What sets the book apart from its competitors is: •

Its detailed commentary on lease terms and the interpretation of commercial and residential leases, residential service charges, remedies and ADR and management disputes.

•

Its practical guidance on how to approach service charge and management disputes and how to resolve them.

•

Its consideration of service charge and management disputes in one book, given that management disputes invariably arise out of, and are linked to, disputes relating to service charges.

•

Its section on the statutory regulation of service charges and other controls, which contains chapters on each of the major issues which affect the recoverability of service charges.

•

The inclusion in its appendices for quick and easy reference of all of the statutes and regulations which are commonly required in service charge and management disputes.

•

The inclusion of a number of forms of notice for the use of solicitors, counsel, surveyors and managers.

How do you manage to juggle your writing and your day to day work?

With difficulty! Inevitably, editing the book has taken a great deal of time, which has meant that I did not get much of a summer holiday and have not been able to do as much paid work as I would have liked.

However, I have found that my time on the train commuting to and from Chambers has given me a good deal of time to read, consider and edit the book.

How do you relax in your spare time?

I have three children, so there is not much relaxation at home. Most of my spare time is spent with them and invariably involves complex mediation in Lego-related building disputes.

What do you think are the key challenges facing practitioners today?

The legal services market has become more specialist, which has meant that practitioners have needed to evolve to meet the expectations and demands of their clients. This has meant that the competition to tender for work is more intense and practitioners need more effectively to promote their particular areas of expertise and the service they provide to their clients. It has also meant that in some sectors – particularly where the client is a publicly funded body – there has been significant downward pressure on fees.

The evolution (some would say revolution) in the way in which litigation is funded continues to provide both difficulties and opportunities for practitioners.

Do you have any other writing projects on the horizon?

Once the 3rd edition is published, I think I will take a bit of time off from writing before embarking on any further writing projects!

Take us through a day in the life of Adrian Carr Up at 6:00. Train at 7:12. Read email, check Lawtel and do any reading required for the day’s work. Arrive in chambers at 8:40. Check email again. Prepare for Court: printing, bundling, collecting files and books. Remember to put on a tie. Tube to Court at 9:35. Meet solicitor and client at 10:00 for pre-hearing conference. At 10:30 start to wait while judge deals with urgent injunction applications. Wait some more. Hearing starts at 11:30. Hearing finishes at 1:00. Debrief client. Tube back to Chambers. Lunch. Paperwork or preparation for any hearing the following day. Leave Chambers at 6:00. Home at 7:45. Say hello and read to any children still awake. And relax …

Service Charges and Management 3rd Edition December 2013 £145

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