NWLC Consortium Quarterly - Summer 2020 (Edition 1)

quarterlyconsortium Issue #01 Summer 2020



Welcome to the first edition welcome of ‘Consortium Quarterly’, a new quarterly browser based magazine for those working in Consortium member organisations. We have tried to create a format that combines the coherence and look of a monthly printed magazine with all the timeliness and interactivity of an on-line version. We hope you agree! When the NWLC was launched in 2006 with just 4 local authority members, we could never have imagined the changes we’d see over the following fourteen years. In the world, in the public sector through the years of austerity and in the office (or not) we have tried to adapt to changing circumstances and needs and as our membership has grown it seems more important than ever to have regular contact with staff from all our 48 member organisations. This magazine will be issued in addition to our current monthly e-Bulletin which will continue but the new Consortium Quarterly will have more legal content with regular input from our 4 Partner Firms. In this launch edition we have articles and top tips from Bevan Brittan, DAC Beachcroft, Geldards and Weightmans. We hear from Board Members Sian and Harriet about the work they are doing to support trainees in member organisations and from Anne with her perspective from the Practice Management side of the business. Plus there’s an update on the Consortium Barristers Portal and an insight into the working life of a colleague in a beautiful part of our patch. As we continue to work in these strange times of Covid 19 I hope that you are coping with the changes to not only your working life but also to family and social life and most importantly that you are staying safe and well. The Consortium is here to assist you whilst you are working from home. I do hope that having the benefits and convenience of access to external support through the commissioning tool on the website and the ability to contact and share issues and ideas with colleagues at other member organisations through the website Directory have proved useful to you. We hope you like the look and feel of the new magazine, do let us know what you think. We’d love to hear from you if you have comments on the publication, ideas for its improvement, requests for particular content or indeed any views on the Consortium. You can email me at [email protected] or Beryl Heath, Consortium Development Manager at [email protected]. Our next edition is due out in October – let’s hope that life has returned to some form of normality by then! David McCullough, Chair NWLC Management Board pages 1&2

Board Members p5 In Profile p11 Legal Update: Public p17 Meet the members of the Julie Wood from the Lake Sector Leasing Arrangements NWLC board District National Park Authority From DAC Beachcroft NWLC Training 2021 p8 Solicitors Framework p13 Legal Update: Impact of p21 Procurement Save the date for the 2021 £1.7bn Covid-19 Response All the results in full annual training event at Aintree From Bevan Brittan NWLC Barristers Portal p9 Our Partner Firms p15 Legal Update: Walking p23 the Tightrope A really useful resource on the A word from the newly From Weightmans NWLC website appointed NWLC Partner Firms

contents Legal Update: Holding p25 Meet The Trainees p31 Effective Meetings Remotely Introducing the new NWLC From Geldards trainee board members 6 Top Tips p27 Practice Management p33 in the Time of Corona Legal tips in brief from our With Anne Wright partner firms Training Survey 2019/20 p29 The results of this years NWLC training survey pages 3&4

Say hello to your NWLC board members David McCullough Aaron Byrne Chief Legal and Democratic Solicitor, Warrington Borough Officer, Sefton Council and Chair Council of NWLC Management Board I specialise in contracts and In addition to being the Council’s principal legal adviser I have procurement for Warrington responsibility for Legal Services, Democratic Services, the Elections Borough Council where I have Team and the Registrars and Coroners Service. I have over 30 worked for the last two years. I years’ experience working in a local authority legal department started my legal career in private and have always enjoyed the variety and quality of the legal practice before joining Sefton work I have encountered. As well as legal qualifications, I also hold Metropolitan Borough Council as an MBA which has proved a Senior Legal Assistant and then invaluable as my career completed my training contract. took on more managerial responsibilities.

Jill Coule Sian Edwards board members Chief Legal Officer & Monitoring Trainee Solicitor, Sefton Officer, Liverpool City Region Metropolitan Borough Council Combined Authority I joined Sefton in October 2018, Before moving permanently to working in private practice as Liverpool CRCA in 2018, I was a paralegal prior to starting my Head of Regulation & Compliance Training Contract. I am currently and Monitoring Officer for Sefton working within the busy Childcare/ Metropolitan Borough Council, SEN team dealing mainly with Head of Legal Services and SEN Tribunal appeals. I was Monitoring Officer at Hertsmere appointed as a Trainee Board Borough Council, and Deputy member earlier this year and look Monitoring Officer and Principal forward to working with my fellow Lawyer for Governance at the board member Harriet to create London Borough of Harrow. I a network of trainee solicitors / was responsible for introducing legal executives from across the the standards Consortium. regime to Harrow and the revised regime to Hertsmere and Sefton. Anne Greenwood Sian Roxborough Employment Solicitor & Senior City Solicitor and Monitoring Legal Manager, Cheshire West Officer, Salford City Council and Chester Borough Council I am City Solicitor and Monitoring I am a solicitor specialising Officer for Salford City Council, in employment law, and the working closely with the shared senior legal manager of a team legal service based at Manchester of lawyers covering property, City Council. My background planning, highways, pensions is in litigation and I have nearly and employment. Before joining 30 years experience in local Cheshire West 9 years ago, I government with brief periods in worked in private practice, having private practice as a trainee and trained at Weightmans in Liverpool. criminal advocate and a housing Before that, I worked in commercial association. I was previously Head management and marketing for of Legal Services at Blackburn with companies including Cadbury, Darwen Council for 8 years. Nestle and Boots. My work now is very different, but I really enjoy its variety and challenges. pages 5&6

Lisa Tremble Harriet Vitty board members Assistant Director Governance Trainee Solicitor, Wigan and Monitoring Officer, Eden Metropolitan Borough Council District Council I joined Wigan in June 2019, after I have worked in local government a year working as a paralegal in a private firm. I have recently for 12 years and have been at completed my first seat in the ‘Places Team’ which focused on Eden District Council for the property, litigation and contract work and I am now working in the last 6 years. I am currently the childcare and contentious housing team. I am really enjoying the Assistant Director Governance world of local authority particularly the diversity of the work, you never and Monitoring Officer and know what you will be instructed to do next! have responsibility for Legal Services, Elections, Democratic Services, Scrutiny and Information Governance. David Wilcock Anne Wright, Assistant Director / Monitoring Business Support Manger, Officer (Legal, Governance & Warrington Borough Council Workforce), Rochdale Council. I have been in the Legal Services I have worked across a range of department at Warrington for authorities over the past 30 years, almost 16 years and manage the with extensive experience leading Legal Support Team. I have been on the full range of corporate involved with the NWLC since services including Legal, Corporate its inception as admin support, Governance, HR, OD, Equality and a member of the web group and Diversity, Insurance, Risk and Audit, then on the Management Board. Health & Safety, Public Protection. My area is practice management I am a founding Board Member of the and I am pleased to have instigated NWLC, and am on the Management the formation of a Practice Board of STAR Procurement Management group within the Partnership (Stockport, Trafford, NWLC and to have arranged for Rochdale and some of the Tameside planned Councils) and training an Accredited sessions to be Peer Reviewer aimed at non- for the LGA. lawyers.

6th OCTOBER 2020 ECvAeNTnACrtaEn2iLnn0Liu2nEaD0gl AINTREE RACECOURSE SAVE THE DATE 5th OCTOBER 2021 NWLC ANNUAL TRAINING EVENT 2021 AINTREE RACECOURSE Now taking bookings - www.nwlegalconsortium.com

NWLC Barristers Portal - refreshed and ready The latest update to the NWLC Barristers Portal went live in 2019, enhancing an already immensely useful resource on the NWLC website.

The NWLC Barristers Portal is not Litigation, Education, Employment, a procured framework, but the Housing, Licensing, Mental Health, registered barristers chambers offer Planning & Environment, Police, their services in various work areas Procurement, Property, Trusts & and have provided their discounted Charities. hourly rates and fixed fees across a range of activities. As it is not a You are linked straight through to procured framework, new chambers Chambers through their logos on the can join the Portal at any time. Organisation tab on the website – all there for you in one click. The Portal was originally launched on 1st April 2014 and has been Any authorised user from a member extended over time. It was most organisation can access the secure recently refreshed in 2019 with new areas of the website to browse sets joining and others, sadly leaving. the detailed rates registered by barristers’ chambers. There are now 16 sets of chambers registered: 5 Essex Court, 5pb, 7 Just as with the Solicitors Harrington St Chambers, 11KBW, Framework, once a specific job Atlantic Chambers, Exchange of work is required, authorised Chambers, Fifteen Winckley Square, users are encouraged to treat Francis Taylor Building, Kenworthy’s the tendered/registered rates as Chambers, Kings Chambers, maximum costs and to seek at the Landmark Chambers International, very least a capped or a fixed fee for Lincoln House Chambers, Linenhall the particular job or to run a mini- LC Chambers, Monckton Chambers, competition to achieve a lower price No5 Barristers Chambers and Trinity and therefore maximise savings. Barristers. And of course, the mini competition The current work areas are: and the actual commissioning of Administrative, Childcare, Civil the work including the sending of Litigation, Community Care, instructions and documentation can Corporate Governance, Criminal all be done through the website. pages 9 & 10

Julie Wood Authority Solicitor Lake District National Park Authority

in profile What’s your current role and how long have you held it? I qualified as a solicitor in November 1995 and joined the Lake District National Park Authority (LDNPA) in September 2007 having worked in private practice. As the only solicitor working for the LDNPA I am responsible for providing advice on a wide range of legal matters; everything from governance and committee matters, through procurement, contracts and trademarks to planning and rights of way. Basically, if it crosses my desk I deal with it! For my sins, I am also the Deputy Monitoring Officer, the Data Protection Officer and the Equalities Officer. What does your role involve? As well as attending court, I’m occasionally allowed out into the National Park. Such trips have seen me training Lake Rangers on obtaining evidence for Byelaw prosecutions (in which I pretended to be the mother of one ranger, who still calls me “mum” when he wants something!), surrounded by sheep having been rounded up with them by a sheepdog (don’t ask!), and pulling up saplings with the apprentice rangers on one of the Commons. What are the biggest challenges you currently face? The biggest challenge at the moment is opening up our commercial activities as lockdown eases in a safe and compliant manner. The situation changes almost on a daily basis and there is a tension to manage between visitors, who want to enjoy all that the Lake District has to offer, and the residents, who have seen one of the highest rates of Covid-19 and are understandably nervous about such a large influx of people. To put this in context there are just over 40,000 residents of the Lake District National Park but visitor numbers amount to just under 20 million each year. This puts strain on infrastructure during normal times! What’s the one thing about you that would come as a surprise to most people? I have a level 2 qualification in British Sign Language. pages 11 & 12

Results of solicitors framework procurement The results are in - here are the Lots and the solicitors firms that have been appointed to them.

Lot 1 Civil Litigation, Lot 4 Projects, Procurement & Prosecutions & Regulatory Commercial Lot 2 Including construction litigation, All commercial contracts and company negligence proceedings, possession Lot 5 law. Transport regulation including light proceedings, licensing appeals and rail/tram, heavy rail and bus, ticketing, Lot 3 employment advice and litigation. concessionary fares, state aid, competition law, telecommunications, information Berrymans Lace Mawer LLP Partners technology, digital infrastructure and Bevan Brittan LLP communications, smart technology, Geldards LLP construction contracts (NEC and JCT) and Plexus Law construction adjudication/arbitration. TLT Solicitors Weightmans LLP Addleshaw Goddard LLP Berrymans Lace Mawer LLP Property, Planning & Bevan Brittan LLP Environment DAC Beachcroft LLP DLA Piper Including all conveyancing, Freeths LLP regeneration and highways advice. Geldards LLP Sharpe Pritchard LLP Bevan Brittan LLP TLT Solicitors Brabners LLP Weightmans LLP DAC Beachcroft LLP DLA Piper Social Care & Education Freeths LLP Geldards LLP Including adult and children social TLT Solicitors care and education. Corporate Governance, Berrymans Lace Mawer LLP Ethical Standards & Bevan Brittan LLP Information Law Browne Jacobson LLP DAC Beachcroft LLP Including organisational governance issues, Weightmans LLP data protection advice (inc. social media). Four main NWLC Bevan Brittan LLP Partner Firms have also DAC Beachcroft LLP been appointed DWF LLP Geldards LLP Bevan Brittan LLP TLT Solicitors DAC Beachcroft LLP Weightmans LLP Geldards LLP Weightmans LLP

Bevan Brittan NWLC Training partner This will be announced Bevan Brittan is delighted shortly. to join the NWLC legal framework. This year, we Your feedback has provided will be working with our us with the topics and framework partners to the training format that provide you with a range of you would like to see topical training activities to incorporated in the 2020- inform, update and enhance 21 training schedule. And your legal knowledge. for the first time, this will include both webinar and To ensure we meet your face-to-face training (when needs, NWLC issued a permitted). We hope to training survey. Thank you finalise and launch the to everyone who completed programme shortly, and look the questionnaire - we know forward to welcoming you at you’re keen to hear who has a training event in the next won the Amazon voucher! few months. DAC Beachcroft DAC Beachcroft are leading a project, alongside committed to providing other Partner Firms, to added value services increase awareness among which are of real benefit members of the added value to members, including: services available. We are bespoke training, access also exploring how we can to DACB seminars, legal demonstrate and report surgeries, E-briefings, collectively on social value updates and alerts, work activity delivered by partner placements/shadowing/ and non-partner firms. mentoring, secondments and video conferencing. Mindfulness Webinar DAC Beachcroft’s Head of We have a helpline (0161 Employee Relations, Ben 934 3088) for NWLC Morris, recently held a 30 members who don’t have minute webinar introducing a dedicated DACB point of mindfulness. To access the contact. This year we will be recording please click here.

Geldards our partner firms Geldards are delighted to Free Initial Consultation, have been reappointed as Bespoke Training & a Partner firm. Consortium Forums and Special lead Tiffany Cloynes and Projects & Strategic the public sector team will Support. To discuss continue to provide a range bespoke training or strategic of added value services for all support, please contact members, as well as working [email protected]. with the Management Board on a number of specialist In 2020/21, Geldards will projects that will add further be supporting Beryl Heath value to the consortium. and the NWLC Board to develop a new Consortium Key elements of the value Newsletter, and in the longer added services provided term providing a critique and to Consortium Members assessment of the current include: Updates and website to enhance support Briefings, Webinars, to Consortium Members. Weightmans Weightmans’ philosophy is Consortium by drawing to share knowledge, improve together a precedent performance and reduce bank for the use of lawyers costs. All added value is working in member provided in this spirit and it is only of value if it achieves organisations, presented these goals. and available through the Consortium website. To that end, Weightmans The precedent bank will are delighted to continue as be built up over time and a Partner firm under the will provide niche and new Solicitors Framework bespoke precedents to and to offer Consortium busy practitioners in their members genuine specialist field of practice. innovation and value. In 2020-21 Weightmans will be supporting the pages 15 & 16

Accountancy interpretation of public sector leasing arrangements Following a two week trial in the Commercial The Facts Court, in which DAC Beachcroft acted The case concerned a voluntary aided for the successful Defendant – the Isle of maintained school on the Isle of Wight, that Wight Council, the Court has handed down had entered into a hire contract (“the Lease”) a significant judgment concerning the with the Claimants (a modular building application of the ultra vires doctrine in company and their various financiers) for cases concerning public bodies. the provision of a sixth form building, to be constructed using modular units built off-site, Central to the judgment was the appropriate and leased to the College for 15 years from classification of a public sector hire contract 2013 at a rent of nearly £700,000 pa. / leasing arrangement; more specifically the extent to which the Lease should properly be The Lease proved to be prohibitively classified as a Finance Lease (and thereby expensive and the College found itself ‘capital expenditure’) or an Operating Lease unable to make the payments under the (and thereby a ‘revenue expense’). The lease and ceased doing so in September judgment will act as an important guide for 2017. This prompted the Claimants to all accountancy firms on this issue, and has terminate the Lease and pursue a claim particular significance for those that provide against the College for the remainder of all services to public bodies. sums due under the contract for the balance

Duncan Greenwood and Mark Cawthorne of DAC Beachcroft talk us through ‘The Isle of Wight Case’ and the significant impact it could have upon contracts between private companies and public entities. of the hire period (c.£7.5m). The Council was ii. An Operating Lease (and therefore had also pursued on the basis that it was alleged been legitimately entered into by the College the College had entered into the contract as utilising funds from its Revenue budget). the Council’s agent (by virtue of section 49(5) of the School Standards and Framework Act Finance Lease vs. Operating Lease 1998). The Defendants also faced ancillary Having heard expert accountancy and claims founded in misrepresentation / property valuation evidence, Mr Justice negligent misstatement. The case was Foxton accepted the argument that the defended primarily on the basis that it was contract was a finance rather than an contended that the College had had no operating lease, thereby constituting a form vires (legal power) to enter into the Lease, of borrowing (a maintained school cannot and in doing so the Council cited numerous borrow without the Secretary of State’s breaches of public law as to why that was consent, which had not been obtained: see the case. Mostly, however, the enforceability paragraph 3 of Schedule 1 to the Education of the Lease turned upon an accounting Act 2002). The College was therefore entitled question, namely: whether the Lease was: to a declaration that the Lease was void. i. A Finance Lease (and therefore void on the basis that it amounted to Capex; and The Lease was interpreted with reference therefore borrowing without consent) or to International Accounting Standard 17 pages 17 & 18

(“IAS17”) (as the applicable accounting standard in Whilst the Claimants’ mantra throughout the trial force at the time the Lease was entered into), which was that the sixth form building comprised 81 provided that a Finance Lease “is a lease which modules that could be easily relocated, the Judge transfers substantially all of the risks and rewards of found that the reality of the situation was that the ownership to the lessee.” An Operating Lease on the building had been constructed on site with the other hand was merely defined in IAS17, as a Lease intention that it would never be moved. Even on the which “is not a Finance Lease.” With a Finance Lease, Claimants’ own evidence, the relocation cost was the substance of the transaction is considered the likely to exceed £1.2m and therefore relocation was same as if the school had purchased the building not a commercially viable proposition. and financed it through a loan. 3. Lease term is for major part of economic life The judgment makes it clear that simply choosing of asset. to call a Lease an Operating Lease in order to suit The judge’s findings of fact (with reference to the the commercial aspirations of the parties, is of no valuation expert opinion that was presented by the consequence. As the Judge explained, “the parties’ parties), also pointed very firmly to the conclusion own descriptions cannot be decisive of an issue which that this further primary Finance Lease indicator was turns on the economic substance of the transaction.” satisfied. The conclusion that moving the building Instead, the firm conclusion was that the issue of was uneconomical, combined with the location of the Lease classification should involve an assessment of building and the only viable end-party user being the substance (as opposed to the form) of the Lease; another School or College, all pointed to the further specifically with reference to the so called Primary conclusion that the leased asset did not have any and Secondary Indicators as prescribed by IAS17. The residual ‘in situ’ value and therefore a Lease to the key tests in this instance were: College would inevitably exhaust the major part of the economic life of the asset. 1. The extent to which the “present value of minimum lease payments” (PVMLP) amounted In ordering that the Claimants should be responsible to “substantially all” of the fair value of the asset: for paying 95% of the Council’s costs, Foxton J further The first issue to be determined in this regard was rejected the claim that section 49(5) deemed the what counts as “substantially all,” given that there is College to have entered into the contract as the no express threshold percentage ratio stated in IAS Council’s agent. He found that such a construction 17? Here, there was a difference of opinion between was incompatible with the legislative framework as a the accountancy experts. The expert appointed on whole. behalf of the Claimant gave evidence to the effect that “substantially all” is generally taken to be a minimum Equally, the claims for misrepresentation and/or of 90%, although there was an acknowledgement that negligent misstatement also failed (on the basis that practitioners can elect to apply different percentages. any representations made by the College and/or the In contrast, the Council’s expert explained that Council prior to the entry of the Lease) did not, as a although some accountants use a 90% figure, since matter of fact, induce the Claimants to enter into the neither IAS 17, nor the peer guidance on IAS 17 Lease. given by KPMG and Deloitte refer to a 90% figure), it should be approached with caution. As the Judge The wider impact: explained, “there is no single bright numerical line, This judgment has the potential to have a significant rather an accountant must exercise his judgment impact upon contracts between private companies by applying the test of “substantially all” according and public entities. Central Government austerity to the ordinary meaning of those words.” In the end, measures and budgetary constraints in the public Foxton J found that the valuation evidence pointed sector have inevitably meant that funding for capital very clearly to the fact that the 90% threshold had projects has been reduced. Companies such as the been exceeded, even after one applied all realistic Claimants have stepped in to try and take advantage assumptions in the Claimant’s favour. of this new commercial opportunity. 2. Leased asset of such a specialised nature It of course remains to be seen whether the judgment that only the lessee can use them without major in this particular case will cause public bodies modifications. up and down the country to re-evaluate existing

contracts. However, what is clear is that every leasing arrangement and the ultimate lease classification should be considered on a case by case basis, following an assessment of individual merits and the nuances of each transaction. Leasing arrangements that represent a ‘bad deal’ for the public purse may face a challenge. From an accountancy perspective, particularly regarding the PVMLP test, the Judge also cautioned practitioners that the substance of the Lease may in certain circumstances mean that accountancy practitioners should moderate their approach; as the Judge explained: “this case involves a modular building, installed on site after substantial preparatory and groundwork, designed to meet the lessee’s specialised requirements, subject to a 15-year lease term and which it would involve a significant financial and logistical effort to relocate. These are characteristics which might be thought to test the outer limits of the concept of an operating lease, and to make the use of a lower PVMLP threshold more prudent.” The Future: Accountants in this sector will no doubt already be alive to the impact of International Financial Reporting Standard (“IFRS”) 16 - Leases, which became applicable to public sector institutions for accounting periods commencing on or after 1 April 2020. The overall effect of IFRS 16 is to eliminate the distinction and accounting treatment between operating and finance leases for lessees. Under IFRS 16 all leases (with the exception, as an option, of low value or short-term leases) should be accounted for as a “right of use asset”. The effect of this would appear to result in a lease, which may have been previously classified as an operating lease, being recorded as a right of use asset and capitalised on the balance sheet, with an associated lease liability also shown on the balance sheet. The full judgment can be found here: https://www.bailii.org/ ew/cases/EWHC/Comm/2020/1118.html The Council were represented by DAC Beachcroft LLP (Duncan Greenwood Partner and Mark Cawthorne Senior Associate) whose accountancy expert was Adam Smith of BDO LLP. pages 19 & 20

Impact of £1.7bn Covid-19 response Kyle Duggan of Bevan Brittan takes a look at the dramatic rise in direct contract awards during the Covid-19 crisis – but challenges are becoming increasingly likely. The Covid-19 pandemic has affected all 32 of the Public Contracts Regulations) walks of life and society. It has generated rather than openly advertised competitive many urgent public procurement needs procurement procedures. There are in response to the crisis while ‘normal’ a number of mechanisms available to procurement activity has, unsurprisingly, contracting authorities to procure quickly significantly reduced. and efficiently, including in making direct awards where they are justified. Though A recent Tussell report clearly demonstrates heavily relied upon recently and in part the this. It reveals the dramatic impact on public subject of recent Government Guidance in procurement activity during the Covid-19 PPN 01/2020, the tests for whether a direct crisis - but also demonstrates tentative award of an above threshold public contract signs of vigour beginning to return to the without competition is justified are not new. marketplace. In May 2020 only half as Exemptions to the general obligation to many invitations to tender were published advertise such contracts have existed for against the 2019 monthly average (1,248 many years and are subject to strict judicial against 2,400). However, even this low figure interpretation. As time goes on, reliance represents an upturn from the lows of March on Covid-19 as being an unforeseeable and April 2020, indicating that the sectors circumstance that necessitates making a covered by public procurement may be direct award may become an increasingly showing the very first signs of increased shaky basis upon which to award a public economic activity. contract without competition. The report also reveals a number of recent The relevance of this issue is demonstrated procurement trends. There has been a in connection with one of the largest clear movement towards increased use contracts awarded in recent months – a of direct awards (likely under Regulation £108m contract directly awarded to Pestfix

for the supply of PPE. The Good Law Project, awarded 17 contracts for emergency freight a not-for-profit organisation that “uses the capacity, including six to P&O Ferries worth law to protect the interests of the public” some £13 million. It is not too long ago that launched judicial review proceedings at the P&O and the DfT found themselves on High Court to challenge the award. opposing sides in relation to allegations of unlawful direct awards and, as the Brexit Another notable point arising from the Ferries contracts saga exposed, reliance report is that large numbers of high-value on reasons of extreme urgency in making public contracts are being awarded to direct awards of public contracts can be participants who are not regular competitors problematic if the reasons do not stand up to in this field. Around a quarter of contracts, scrutiny. worth well in excess of £200 million, have been awarded to economic operators not As time goes on and public spending adjusts previously identified as a party to a public to the new reality of living with Covid-19, contract. we would anticipate that the number of contracts awarded without an advertised It is also striking that the procurement competition would drop significantly, response during Covid-19 has been highly reflecting the narrowness with which the centralised – more than 90% of the value of procurement exemptions are drawn. Should contracts in response to the crisis have been that not be the case, there may well be an awarded by central government, compared uptick in economic operators who are not to just 5% by local government. This is to benefiting from direct awards looking to be expected given the need to control the bring procurement challenges. response and use central buying power. We can expect the value of contracts awarded For local authorities and other public by local government to rise again as a bodies, we would therefore recommend proportion of the total as normality begins to that decisions to award contracts without return. competition, in reliance on Covid-19-related factors, should be very carefully considered One sector that has seen extensive use as the immediate crisis abates and market of direct awards is freight transportation, conditions adjust to the new normality. with the Department for Transport having pages 21 & 22

Walking the tightrope Weightmans examines ‘Lancashire CC v EWFC/HCJ/2020/43’, asking how we can balance the right to a fair hearing in childcare proceedings during the Covid-19 pandemic.

Background and junior counsel for the parties, The case involved the admission solicitors for the parents and the to hospital of a child with extensive father’s intermediary) to attend a injuries. The parents denied properly socially distanced fully face responsibility for the injuries. The to face hearing. That court (the MCJC) local authority sought findings that had also been the subject of a full risk the child’s injuries were inflicted assessment by HMCTS indicating that on him by either the mother or the the building was ‘COVID-secure’. father or both his parents. The local authority relied on welfare concerns Outcome arising out of the parents’ alleged The application to adjourn for a third use of drugs, their emotional and time was refused. mental health, their alleged hostility to professional intervention and their Paragraph 45 of the judgment alleged inability to work openly and sets out the factors that inform the honestly with professionals. The question of whether, in any given matter was listed for contested final case, a hearing should be conducted hearing set up in a hybrid manner at by way of a remote hearing, or a MCJC. Due to COVID-19 restrictions hybrid hearing or adjourned for the father sought an adjournment a fully face to face hearing. Those of the hybrid hearing until a face to nine points include the welfare of face hearing could take place. the child, delay, requirement to deal with a case justly, extent a remote The hearing or hybrid hearing will provide the The father advanced Article 6 ECHR judge with a proper basis on which arguments that he would not be to make a judgement, steps that able to fully participate in the hybrid can be taken to reduce unfairness, hearing in Manchester and sought impact of COVID-19 on the timescales an adjournment until the matter for a fully face to face hearing, giving could be heard in Preston face to consideration to whether all parties face. It was submitted on behalf consent, importance and nature of of the father that only a further the issue, whether there is a need adjournment to await a time when for urgency, if the parties are legally a face to face hearing could take represented and the ability of lay place in Preston would afford the parties to access engage and follow father the proper opportunity to remote proceedings. properly participate and engage in a court hearing having regard to Comment his particular vulnerabilities, those This case highlights the critical being severe anxieties. The mother importance of considering each supported the father’s application. case on its own facts and applying the nine points highlighted in the The local authority and the Children’s judgment. Going forward, should a Guardian strongly opposed a party seek a fully face to face hearing further adjournment. The local there would have to be submissions authority submitted that the face surrounding those nine points from to face hearing that both parents all parties if an agreement could not sought had been made available be reached. It is likely that this would by the court at considerable effort: involve careful case management a courtroom in Manchester which and possibly the submission of a could accommodate twenty people case plan to inform practically how a (thus allowing the parties, leading hearing could take place. pages 23 & 24

Holding effective meetings remotely The legal experts at Geldards explore how local authorities can still work and meet effectively during the current pandemic. The introduction of regulations to allow local and rescue authorities and national park authorities to hold meetings remotely has authorities. Those regulations provide meant that the need for social distancing to for remote attendance at local authority address the coronavirus pandemic has not and police and crime panel meetings by prevented local authorities from meeting interpreting reference to meetings in other and taking decisions. legislation as including meetings where the persons attending are in different places The Local Authorities and Police and Crime and attend at electronic, digital or virtual Panels (Coronavirus) (Flexibility of Local locations, such as internet locations, web Authority and Police and Crime Panel addresses and conference call telephone Meetings) (England and Wales) Regulations numbers. A local authority member will be 2020 came into force on 4 April 2020 and considered to attend a meeting if he or she will apply to meetings of local authorities is able: in England and police and crime panels until 7 May 2021. The definition of local • to hear, and where practicable see and authority for these purposes is wide and be so heard and, where practicable be includes county, district and London seen by the other members in attendance; borough councils, the Common Council of the City of London, the Council of the Isles • to hear and where practicable see, and of Scilly, parish councils, and a range of be so heard and, where practicable, be other authorities, such as waste disposal seen by any members of the public entitled authorities, combined authorities, fire to attend the meeting in order to exercise a right to speak at the meeting, and

• to be so heard and, where practicable, of members participate in a meeting by be seen by any other members of the means of different forms of technology and public attending the meeting. in circumstances where it may be difficult to establish if each member is alone whilst The regulations also make provision for attending the meeting. requirements for public and press access to local authority meetings to be satisfied • Maintaining high standards of conduct, by remote access. The power for local as required by section 27 of the Localism authorities to hold meetings remotely applies Act 2011. There have already been many notwithstanding anything to the contrary interesting cases where monitoring officers in their constitutions. Local authorities have needed to consider allegations that may make standing orders and other members have breached codes of conduct rules relating to remote attendance at their through their behaviour at meetings held meetings. These might address issues such in the traditional manner. Participation as voting, member and public access to through remote means there are new documents and remote access of public and nuances and issues to consider when press to meetings. monitoring the conduct of members. The making of the regulations was • Consistency with each local authority’s an important step to ensure that local constitution. Local authorities should democracy would not be compromised by consider reviewing their constitutions the impact of the pandemic. In order for to ensure that they are effective and local authorities to hold remote meetings understandable in a remote meeting effectively, there are some important issues context. for them to address. These include: The power to hold remote meetings is an • Ensuring that public access is provided important tool for local authorities and it is and that confidentiality is maintained when important for them to take account of the confidential business is discussed. This practical issues and ensure they use their could be challenging if a large number power effectively. pages 25 & 26

DAC BEACHCROFT WEBINAR Real Estate - Protection from forfeiture extended to< A Safe Return to Work during 30 September 2020: The government has announced COVID-19: With the UK Government implementing the exit strategy from that the protection from forfeiture given to relevant business tenants under s82 of the Coronavirus Act will lockdown, increasing numbers of be extended until 30 September 2020. The temporary CRAR changes are also extended and will now prevent employees are returning to work. In CRAR unless at least 189 days rent is outstanding. A this webinar Employment Partner, voluntary Code of Practice for commercial landlords Deborah Hely and Associate, Barrie and tenants, which encourages transparency and collaboration, has also been published by the Hall, an expert on health and Government. Click for more... safety at work, discuss and answer 01 questions on areas including Health < 02 and Safety and Employees. To listen to the webinar, please click here... Delegation of Functions to Council < 03 companies: It is not possible to delegate a function directly to a company (unless the function is covered by an order under the Deregulation and Contracting Out Act 1994 or other specific enabling legislation), even if wholly owned or controlled. Sections 101 / 102 LGA 1972 allow for the delegation of non-executive functions to a committee, an officer or another local authority. Sections 9EA / 9EB LGA 2000 and the Local Authorities (Arrangements for the Discharge of Functions) (England) Regulations 2012 allow delegation of executive functions to an executive member, Cabinet committee, an officer, or another local authority. The authority must therefore retain control over strategic decision-making and decisions affecting individuals.

<Appropriation of Land: Local authorities who Business and Planning Bill: intend to appropriate land must ensure that they This Bill includes measures to take a decision to do so. A recent case – Adamson, promote flexibility in the planning R. (On the Application Of) v Kirklees Metropolitan system in response to Covid-19. Borough Council [2020] EWCA Civ 154 – confirmed Planning permissions which are that, although it is not necessary for an appropriation due to expire between 28 days to have been recorded in a resolution which used the after the date of enactment of word “appropriation”, there must be evidence of a the Bill up until 31.12.2020 will valid decision. receive an automatic extension to 1.4.2021. Permissions which have 04 already expired from 23.3.2020 up until 28 days after the Bill is 05 > enacted can also benefit from an extension, subject to a process of “additional environmental approval” by the Local Planning Authority. 06 > Joint working: There have been 2 important judgments of the ECJ this year on the application of the under-utilised ‘Hamburg Waste’ exemption (Regulation 12(7) of the Public Contracts Regulations 2015) which facilitates joint working. The first (Stadt Koln) confirms that the exemption can apply to back-office services which are fundamental to the performance of public services. The second (Remondis) confirms that the requirement for there to be a genuine collaboration is not satisfied where the sole contribution of an authority is limited to a simple reimbursement of costs. 6 Top Tips In brief: legal tips from our partner firms

Training survey results for 2019/20 Thanks for your help with our Annual Training Survey! For this years survey, completed in June 2020, we received responses from individuals representing 27 of our 48 member organisations. The free NWLC training provided during training programme which covers as many 2019-20 has been well received. There of the requested topics as possible. They has been some great feedback after the have asked that the training sessions are in sessions themselves, and this is reflected in a live webinar format (at least until the end the survey results, with 98% of respondents of the calendar year), that each webinar who have attended training being satisfied should be a maximum length of 1.5 hours, with the quality. We also received plenty of and each session should be recorded and suggestions and requests for training topics subsequently available to view online. This to cover in the future. work is proceeding now and as soon as a draft programme is available it will be Online training published on the website at The 2018-19 survey had identified that 74% www.nwlegalconsortium.com. of respondents were likely to use training delivered by alternative methods. The Spread the word COVID-19 pandemic has increased the To ensure that everyone hears about the need for alternative forms of training, with training that is on offer we will continue to organisations now utilising online methods promote the training sessions on the website of communication to greater effect. The and in email alerts and newsletters. If there 2019-20 survey built upon this response are people within your organisation who and asked members what their preferences would benefit from receiving the newsletters would be for online training. and alerts and who are not currently registered with the Consortium, please ask New programme your Head of Service for permission to add Based upon the survey responses you can them to the website Directory and let Beryl see opposite, your Management Board have Heath (Consortium Development Manager) asked the four Partner Firms to design a have their details.

98% 76% General of responders participated in training during 2019-20 of those who had attended training 98% were satisfied with the quality (an increase from 2019) agreed the training had improved their knowledge 32% Adult Social Care Data Protection Planning & CPO of responders said Highways past training topics SENEmployment had been very relevant to their role Property 66% State Aid said they had been Governance & Decision Making moderately relevant Contract Management Procurement Main topic areas requested for training in 2020/21 69% 1.5 73% Online said their hours requested that webinars were optimum recorded to watch webinar length donemand would be a maximum of pages 29 & 30

Sian Edwards and Harriet Vitty have both recently been appointed to the Consortium Management Board. Both are enthusiastic about bringing trainee solicitors and legal executives together from across NWLC organisations, to create a network of support and knowledge. The NWLC trainee board members

Sian Edwards We also recognise that training in local Sefton Metropolitan Borough Council government is a unique experience where Training: Trainee Solicitor in the final seat a broad knowledge of statutory processes of my Training Contract, currently in the is paramount, whilst also ensuring an Childcare/SEN team. awareness with wider socio legal issues. To Favourite chocolate bar: Kit Kat Chunky this end we plan to circulate regular articles Caramel. within the Consortium Quarterly to deal with trainee specific issues as well as career Harriet Vitty opportunities across the NWLC organisations. Wigan Borough Council Training: Just completed my first year of Although the current pandemic prevents my training contract, I have now moved us networking physically, we think that a to the People’s Team mainly focusing on virtual forum may be beneficial. It has been contentious Housing and Childcare. reported that many young professionals Favourite Film: Erin Brockovich. are struggling to balance lone working and home life whilst working from home during What do we want to achieve? lockdown. A virtual forum may assist those One of the objectives of the consortium is who perhaps feel unsupported or crave the “increased inter-authority working and co- social interaction from being in a busy office. operation” - we hope that we can encourage and further this objective. Next Steps You will be aware that all heads of legal We recognise that some organisations within services within the Consortium have the consortium only have one trainee and recently been contacted to gauge interest it might be helpful to have a community within the trainee community. We will soon or forum of trainees to share experiences. be contacting all trainees to ask them what We are making enquiries with our newly they feel the Consortium could do to bring appointed partner firms to see whether they trainees together. We hope to report back to have trainee associations, and if so whether the Board on these ideas and share our next they would allow consortium trainees to steps to ensure a strong network is built for attend any networking events they hold. trainees across the Consortium. Sian Edwards Harriet Vitty pages 31 & 32

Practice management in the time of Corona Anne Wright, Business Support Manager at Warrington Borough Council, looks at how her work has changed over the past few months. The sudden change to life as we knew it issues. The closure of schools for 3 months brought about by the global coronavirus has left many parents trying to juggle jobs, pandemic has had many consequences for childcare and home-schooling, all without us all, both professionally and personally. the safety net of soft play areas and the The inability to meet with and, more added pressure of trying to remember how importantly for some, to hug close friends to do long division and what a diphthong is! and family members has left people feeling bereft and often isolated. The closure of From a professional point of view, ICT teams pubs, gyms, restaurants, hairdressers and across the country have rallied to ensure other leisure facilities has led to families that all members of their organisations who being forced to spend more time together are able to work effectively from home have (blessing or curse? Only you can answer the technological capability to do so and for that!) and some serious personal grooming most people this means conducting business

in a very different way. Zoom, Skype or when the timescale for corrective action practice management update Teams bingo has become the thing to get on a minor (21 days) cannot be met due to you through duller meetings. The ubiquitous coronavirus – e.g. not being able to access “You’re on mute” or “Can you see my screen” files or policies in the office. This will not along with the regular child or pet crashing carry the normal gravity of a major, but will onto the screen are the new norm along with give the practice sufficient time to complete trying to hide your amusement at some of the the corrective action without impacting upon hairstyles (I use the term ‘style’ loosely here) their continued accreditation. on show – be it 2 inch roots, unruly curls, floppy fringes or horror home haircuts, we’ve The Law Society and the SRA have both got seen it all in the strange times through which dedicated pages on their websites dedicated we’re living. to the latest new on how coronavirus is affecting the industry, click the links above or In many cases though, it is business as usual visit their websites for more. – many of us have discovered that although ‘they’ said it wasn’t possible, we are actually Finally, in the midst of all the chaos, working effectively and efficiently from remember to check in with people – your home, even Support teams. My team go to teams, other colleagues, clients, etc. We often the office once a week to arrange any sealing don’t know the personal circumstances of or signing and to post or print documents our colleagues and there will some who that can only be done physically, otherwise live alone and may feel isolated, others who they are working totally at home, extremely struggle to maintain good mental health at effectively. We are also busier than usual the best of times and the uncertainty of the so the fears that we had at the start that we current situation could be causing them would struggle to do the work required or anxiety or simply those that need a 5 minute fill our days were totally unfounded. The break from home-schooling to have a chat success of enforced home working across with another adult about anything other than the country will no doubt lead to changes in Ancient Egypt or vulgar fractions. A simple the way we work in future. Hopefully it will email or call to say, “How are you doing?” lead to slicker processes and more flexible and a genuine interest in their response workplaces with the emphasis on outcomes can make a real difference to somebody rather than the need to see bums on seats who may be having a bad day. Nick O’Neill, which is prevalent in so many organisations. Governance & Practice Manager at Wirral Council wrote this informative article for the We have recently undertaken our Lexcel Law Society Gazette, well worth a read. audit remotely and while there were undoubtedly moments of frustration, for the There is a wealth of resource out there most part it was fine and we got through to help maintain good mental health in it relatively unscathed. As an aside, the lockdown, for instance from mentalhealth. assessor informed us that the Law Society org or the NHS, but any internet search will are making allowances and allowing produce a raft of useful information. Take assessors to register major non-compliances care and stay safe. pages 33 & 34

quarterlyconsortium Partner Firm Main Contacts David Hutton Tiffany Cloynes Partner Partner T: 0370 194 8927 T: 020 7620 0088 / 01332 378302 M: 07867 976835 M: 07741 312976 [email protected] [email protected] Ioan Davies Simon Goacher Legal Director Partner T: 0113 251 4861 T: 0345 073 9900 / ext 139582 M: 07843 069546 DD: 0151 243 9582 [email protected] [email protected] Front cover images, clockwise from top left: Modern office building, Liverpool; Morecambe Bay, Morecambe; Imperial War Museum, Salford; Hills above Haweswater, Cumbria. © NW Legal Consortium July 2020. This newsletter and the legal articles included are intended solely as an overview of the law in England and Wales. No responsibility can be accepted for the completeness or accuracy of the contents included and professional advice should be taken in relation on to any specific matter.